Abdul Ghani bin Tahir v PP

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Chan Seng Onn J
• Judgment Date: 26 May 2017
• Neutral Citation: [2017] SGHC 125
• Citation: [2017] SGHC 125
• Hearing Date: 20 January 2017
• Published date: 13 October 2017
• Year: 2017
• Date: 26 May 2017
• Docket Number: Magistrate's Appeal No 9042 of 2016/01
• Subject Matter: Mens rea,Directors,Criminal Procedure and Sentencing,Corruption, Drug Trafficking and other Serious Crimes (Confiscation of Benefits) Act,Sentencing,Statutory offences,Attributable to his Neglect,Elements of crime,Companies,Costs for Prosecution,Resident directors,Compensation and costs,Companies Act,Criminal Law,Benchmark sentences,Criminal offences
• Plaintiff Counsel: Hamidul Haq, Muslim Albakri and Ho Jun Yi (Rajah & Tann Singapore LLP)
• Defendant Counsel: Gordon Oh and Stacey Fernandez (Attorney-General's Chambers),Jerald Foo (Cavenagh Law LLP) as amicus curiae.

Chan Seng Onn J: Introduction

This is the first prosecution of its kind under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“the CDSA”) where a director of a company has been convicted and sentenced to imprisonment where the use of a company’s bank accounts in connection with money laundering offences was found to be attributable to his neglect. Incidentally, it is also the first reported case in which a director has been sentenced to imprisonment on account of a failure to exercise reasonable diligence under s 157(1) of the Companies Act (Cap 50, 2006 Rev Ed) (“the CA”).

The said director is Mr Abdul Ghani Bin Tahir (“the Appellant”), who was a local director of a Singapore-incorporated company, World Eastern International Pte Ltd (“WEL”). After a trial that lasted 12 days, the Appellant was convicted by the trial judge (“the District Judge”) of six charges for WEL’s transfer of stolen monies being attributable to his neglect under s 47(1)(b) punishable under s 47(6)(a) read with s 59(1)(b) of the CDSA (referred to as either “the CDSA charges” or “the CDSA offences”) and one charge of failing to exercise reasonable diligence as a director under s 157(1) of the CA (referred to as either “the CA charge” or “the CA offence”). He was sentenced to an aggregate imprisonment term of 26 months and four weeks, disqualified from being a director for five years and ordered to pay S$3992.74 by way of costs to the Prosecution.

The decision of the District Judge can be found in Public Prosecutor v Abdul Ghani bin Tahir [2016] SGDC 161 (“the GD”). The Appellant now appeals against his convictions and sentences on all seven charges as well as the order to pay costs. The Prosecution seeks to uphold the convictions and sentences.

At the outset, I would like to record my deep appreciation to counsel for their invaluable assistance in this appeal. In particular, Mr Jerald Foo (“Mr Foo”), the amicus curiae, should be specially commended for his comprehensive research, analysis and clear written submissions which were instrumental in helping me arrive at my decision.

Background facts

The material undisputed facts can be found at [4] of the GD. I shall briefly set out only the background facts that are relevant to the present appeal.

The Appellant is a chartered accountant who is in the business of providing corporate secretarial services to small and medium business enterprises.¹ As part of these services, the Appellant incorporates companies on behalf of his clients and acts as the resident director of companies whose directors are not ordinarily residents in Singapore.

The Appellant agreed to incorporate the following four companies in Singapore for foreign nationals introduced by one Nadia Monica, who according to the Appellant is an agent of Romanian origin (“Nadia”): (a) Kassar Logistics Pte Ltd (“Kassar”); (b) Lottus International Pte Ltd (“Lottus”); (c) Mega Zone International Pte Ltd (“Mega Zone”); and (d) WEL. The Appellant also agreed to act as the local resident director for all these companies.

Although all the seven charges faced by the Appellant relate only to the activities of WEL, some facts relating to the incorporation and subsequent activities of Kassar and Lottus are relevant to this appeal.

The Appellant incorporated Kassar and Lottus after meeting Nadia in Singapore with two other Romanians in September 2011.² He then attempted to open corporate bank accounts for both Kassar and Lottus with Standard Chartered Bank (“SCB”) but these were declined. He was informed that the bank “did a check on the directors and it did not turn out quite well”.³ He thus opened bank accounts instead with Oversea-Chinese Bank Corporation (“OCBC”) and Hongkong-Shanghai Bank Corporation (“HSBC”).

On 5 and 9 December 2011, Nadia informed the Appellant via email that she had two new clients interested “to open a company” in Singapore and requested him to check whether some of the proposed company names were eligible for incorporation.⁴

Following Nadia’s requests and her provision of certain documents,⁵the Appellant incorporated WEL on 14 December 2011. In the incorporation documents, the Appellant described the principal activities of WEL as “wholesale of parts and accessories for vehicles”.⁶ Marius-Antonio-Costel Sima (“Sima”), who held a Romanian travel document, was the sole shareholder. The Appellant and Sima were registered as the only two directors of WEL. The Appellant consented to be WEL’s director without having met or spoken with Sima.⁷

On 18 December 2011, after the incorporation of WEL, Sima and Nadia came to Singapore whilst the Appellant was overseas.⁸Sima signed a Form 45 to document his consent to be a director of WEL as well as a “Minutes of First Director’s Meeting”, which purportedly documented a directors’ meeting taking place between Sima and the Appellant on 19 December 2011, despite the latter’s absence.

The Appellant and Sima also certified as true an extract of resolutions, which authorised Sima to be the sole signatory of WEL’s bank accounts and the only person who had authority to open or close any of WEL’s accounts with the banks and to apply for or terminate any of the services available from the banks.⁹ Both Sima and Nadia then left Singapore and neither of them returned to Singapore thereafter.

On 9 January 2012, the Appellant opened bank accounts for WEL with United Overseas Bank Limited (“UOB”).¹⁰ In particular, a UOB Corporate Global Currency Account bearing account number XXX-XXX-XXX-X (“WEL’s account”) was approved on the same day in accordance with the mandate provided in the above-mentioned resolutions. The account had a starting balance of US$1,001.53. Subsequently, the Appellant sent to Sima the cheque book and the internet banking token to access WEL’s account via courier to a Romanian address.¹¹

On 2 February 2012, the Appellant gave one statement to Investigating Officer Lim Dewei (“PW9”) of the Commercial Affairs Department (“the CAD”) for the purposes of investigating money laundering allegations against Kassar.¹² The Appellant was in fact informed by PW9 that he was conducting an investigation into an offence under s 47(1)(b) of the CDSA. The Appellant clearly was aware that Kassar was being investigated for money laundering offences under the CDSA. At the trial below, the Appellant did not challenge the voluntariness and accuracy of this statement. By the time this statement was taken, the Appellant also knew that OCBC had closed Kassar’s account.¹³ Two other bank accounts of Kassar with HSBC were also subsequently closed by HSBC in late February or early March 2012¹⁴ and the Appellant was aware of this.¹⁵

On 9 March 2012, one Kho Kian Koen (“PW11”) visited the registered premises of Kassar, in relation to a payment he had made to Kassar.¹⁶ PW11 informed the Appellant that this was a mistaken payment to Kassar, and requested for this payment to be returned.¹⁷ The Appellant then issued a cheque to PW11, which was eventually dishonoured.

There were no activities in WEL’s account from 9 January 2012 (the date it was opened) to 29 March 2012. The account became very active from 30 March 2012, following which numerous deposits and withdrawals took place.¹⁸ WEL’s account was eventually closed on 31 May 2012. On the Appellant’s part, he scanned and emailed the bank statements relating to WEL’s account to Nadia, as previously agreed.¹⁹

From the many transactions in WEL’s account, six deposits (“six deposits”) and six corresponding withdrawals (“six withdrawals”) became the subject of the CDSA charges. It is to be noted that the withdrawals do not correspond directly to the deposits because these illicit deposits were commingled with other funds in WEL’s account. Thus, the weighted average method was used by the Prosecution to account for monies that had been commingled.²⁰ The six illicit deposits of stolen properties that were immediately transferred out of WEL’s account (within one to three days) are set out in the following table:²¹

	Deposits	Withdrawals
S/N	Date	Depositor	Amount (US$)	Date	Remitted to	Amount (US$)
1	11 Apr 2012	Franz Gradnig, Austria	15,570.70	13 Apr 2012	Shock Absorber Co Ltd, China	27,500.00
2	16 Apr 2012	Amano Fisheries Enterprises, Singapore	10,000.00	18 Apr 2012	Silver Foods, Morocco	20,600.00
3	26 Apr 2012	Moon Trading Co., Ltd, Sudan	43,016.90	27 Apr 2012	Rimo Auto Sales, USA	150,000.00
4	3 May 2012	Vivianne Vinet, Canada	135,991.88	4 May 2012	OCTA Management SA, Geneva	250,000.00
5	8 May 2012	Meng Chong Foodstuffs Pte Ltd, Singapore	28,377.50	9 May 2012	EFS European Financial Services Limited, Abu Dhabi	100,000.00
6	25 May 2012	Leo International Trading Pte Ltd, Singapore	88,997.53	28 May 2012	Billion Tech Corporation Limited, Hong Kong	89,200.00
			Total: 321,954.51			Total: 637,300.00

During this period, the Appellant received seven recall notices from UOB between 12 April 2012 and 24 May 2012 (“the recall notices”) (see [130] below) in respect of the six deposits.²² The Appellant scanned and emailed these notices to Nadia and asked her to deal with these notices.²³ However, Nadia did not reply to these emails.²⁴

On 4 June 2012, U Sun Tint (“PW2”), a director of Leo International Trading Pte Ltd, who made the sixth deposit, headed to the Appellant’s office.²⁵ PW2 informed the Appellant that he had mistakenly remitted money into WEL’s account and requested for a return of the money. The Appellant told PW2 that the main person in charge of these matters was in Europe²⁶ and then reported this incident to Nadia.²⁷ Nadia responded by asking the...