Amir Hamzah Bin Berang Kuty v Public Prosecutor

JurisdictionSingapore
JudgeYong Pung How CJ
Judgment Date14 December 2002
Neutral Citation[2002] SGHC 307
Docket NumberMagistrate's Appeal No 133 of 2002
Date14 December 2002
Year2002
Published date19 September 2003
Plaintiff CounselK Mathialahan (Guna & Associates)
Citation[2002] SGHC 307
Defendant CounselSia Aik Kor (Deputy Public Prosecutor)
CourtHigh Court (Singapore)
Subject MatterCriminal Procedure and Sentencing,Whether failure to call witness prejudicial to accused,Penal Code (Cap 224, 1985 Rev Ed) s 408,Whether necessary to prove accused mastermind of conspiracy,Treatment of evidence from accomplice with caution,Abetment,Prosecution's failure to call witness,Distinction between entrustment with doing of job and entrustment with property,Whether witness material,Sentencing,Evidence,Criminal breach of trust,Whether value of property involved in criminal breach of trust cases relevant,Witnesses,Effect of sentencing precedents,Criminal Law,Weight given to evidence,Whether secondary offender should be given heavier sentence than principal offender,Penal Code (Cap 224, 1985 Rev Ed) s 107,Offences,Relevance of accomplice's sentence,Property

Judgment

GROUNDS OF DECISION

Introduction

The appellant was tried and convicted in the district court on the following two charges:

DAC 55982/2001 –

You, AMIR HAMZAH BIN BERANG KUTTY, M/28 yrs, NRIC

No.: S7320354F, are charged that you, in the month of April 2001, in Singapore, did engage with one Saravanan A/L Kaliannan, in a conspiracy to commit criminal breach of trust as a servant, and in pursuance of that conspiracy and in order to commit criminal breach of trust as a servant, an act took place between April and September 2001, at M/s Seagate Technology International located at No. 16 Woodlands Loop, Singapore, to wit, Saravanan A/L Kaliannan, employed as a servant with Seagate Technology International, entrusted in that capacity with 48 pieces of used ‘Heraeus’ platinum targets with a total value of about US$469,800, committed breach of trust by dishonestly misappropriating the said property, which act was committed in pursuance of your abetment, and you have thereby committed an offence punishable under section 408 read with section 109 of the Penal Code, Chapter 224.

DAC 57462/2001 –

You, AMIR HAMZAH BIN BERANG KUTTY, M/28 yrs, NRIC No.: S7320354F, are charged that you, in the month of March 2001, in Singapore, at Woodlands Central MacDonald’s, Singapore, did dishonestly retain stolen property, to wit, two pieces of ‘Tosoh’ platinum targets valued at a total of US$7,000, belonging to M/s Seagate Technology International, having reason to believe the same to be stolen property, and that you thereby committed an offence punishable under Section 411 of the Penal Code.

2 Six other charges against the appellant were initially stood down but the DPP applied for them to be taken into consideration later in the trial. For the first charge, the trial judge sentenced him to five years’ imprisonment and for the second charge, he was sentenced to 18 months’ imprisonment. The trial judge ordered the sentences to run consecutively, bringing the total imprisonment period to six and a half years. The other six charges were taken into consideration for the purposes of sentencing.

3 The appellant appealed against both conviction and sentence. After hearing counsels’ arguments, I dismissed both the appeal against conviction and sentence. I now give my reasons.

The case for the prosecution

4 At the trial below, the prosecution led evidence from six witnesses through conditioned statements as well as by oral testimony. The most crucial evidence against the appellant came from PW1 Saravanan A/L Kaliannan ("Saravanan") and PW3 Kumar s/o Srinivasan ("Kumar").

Saravanan’s statements

5 At the material time, Saravanan was working in Seagate Technology International ("Seagate") as an assistant technician. His job scope included the operation of a sputter machine (used to sputter media discs used in the production of hard disks). As part of his job, he was in charge of sending the used targets to the vendor to be reclaimed. The vendor to Seagate at the material time was Heraeus Precision Engineering Pte Ltd ("Heraeus").

6 Saravanan testified that, sometime in March 2001, the appellant had contacted him and asked him to steal used platinum targets from Seagate, which would then be shipped to Japan. The appellant promised to pay Saravanan $250 for each target. At this point, Saravanan refused to take part in the scheme.

7 Two days later, the appellant approached Saravanan with the same suggestion. Instead, Saravanan came up with a counter proposal and offered to sell to the appellant two used platinum targets from another manufacturer, Tosoh ("‘Tosoh’ targets") which he had misappropriated sometime in November 2000. The appellant agreed to buy the ‘Tosoh’ targets for $200 each and the two arranged to meet up in two days’ time at the Woodlands Central McDonald’s restaurant.

8 At the meeting, the appellant accepted the two ‘Tosoh’ targets and paid Saravanan $400. (It was agreed at trial that the value of each of these ‘Tosoh’ targets referred to in DAC 57462/2001 was US$3,500 each.) On this occasion, the appellant once again brought up the idea of stealing used Heraeus targets. Saravanan stated that the appellant managed to convince him that he (Saravanan) would not get caught, so Saravanan agreed to the plan.

9 A week later, the appellant called Saravanan at work and asked if there were extra targets for him. Saravanan confirmed that there were and the appellant went to Seagate. Two used targets were passed over to him. Saravanan stated that subsequently he would pass the used Heraeus targets to Kumar, Heraeus’s driver. On these occasions, he would get a white envelope from Kumar, which contained money that the appellant had asked Kumar to pass to him.

10 Sometime in November 2001, when it became evident to Seagate that targets had been stolen, Saravanan met the appellant at one Farmart Seafood Restaurant where Saravanan was paid a final $1,000 and was assured by the appellant that all the targets had been shipped to Japan.

11 Saravanan pleaded guilty to the charge of committing criminal breach of trust as a servant by dishonestly misappropriating 48 used platinum targets. He was convicted on 4 March 2002 and sentenced to four years’ imprisonment. Another charge of criminal misappropriation of two ‘Tosoh’ used platinum targets was taken into consideration. Saravanan was serving sentence when he gave evidence for the prosecution against the appellant.

Kumar’s statements

12 At the material time, Kumar was a driver for Heraeus. His job scope at that time included sending new targets to, and collecting used targets from, Seagate. He gave evidence that from around March 2001, Saravanan would give him a few used targets that were not registered or recorded in the returned targets invoice. He also gave evidence that on some of these occasions, the appellant would inform him just before the collection that there would be targets for experiments and that he was to collect them from Saravanan.

13 He stated that he made about ten such trips where he collected used targets that were not registered or recorded in the returned target invoice. On each occasion, there would be between two to four such extra targets.

14 More importantly, he stated that on a few occasions, before he left for Seagate, the appellant would pass him a white envelope bearing the company’s letterhead and that the appellant instructed him on these occasions to hand over the envelope to the appellant. He stated that he delivered them to Saravanan as he was told.

15 Kumar stated that, upon returning to the office from such trips, he would deliver the used targets either to the storeman, one Thanabal, or to the appellant personally. He also stated that on two such occasions, upon returning to the office with the used targets, the appellant taught him how to weigh the used targets. The appellant then asked him to switch them with heavier used targets (scheduled to be returned to the United States) which had been properly recorded in the invoice. However, he could not remember exactly how many of such targets he had switched on the appellant’s instructions.

16 Sometime in October 2001, Kumar received a phone call from the appellant while he was in the office. He stated that the appellant told him to take six pieces of the used targets which the appellant was keeping under the table and to put them on the false ceiling in his office. When asked why he needed to do this, the appellant told Kumar that he did not want the representatives from Seagate to find out that the six targets were in the company.

Statements from other witnesses

17 Apart from Saravanan and Kumar, three other prosecution witnesses gave evidence which implicated the appellant. PW6 Tan Wee Kiat ("Tan"), a Seagate investigator, gave evidence that he lodged a police report on 30 November 2001 when he noticed that there were 48 used targets missing from Seagate’s inventory. PW7 Senior Investigating Office Javier Neo ("Neo") was assigned to the case. On 3 December 2001, Neo was informed by Kumar that the appellant had instructed him to hide the six platinum targets in the false ceiling. Neo acted on the information and raided the Heraeus office where the six targets were recovered. Tan confirmed that the serial numbers of these six targets matched those of the platinum targets missing from Seagate.

18 PW2 Perabu A/L Natarajan ("Perabu") gave evidence that the appellant had asked him to photocopy certificates of analysis for the used targets which had been collected. It was also Perabu’s evidence that this was not the usual practice. The prosecution also adduced evidence from PW4 Krishnamoorthy Ramesh ("Ramesh") who gave evidence that sometime in October 2001, when the Seagate investigators had asked for documents pertaining to the lost platinum targets, the appellant asked him to cover all the pen markings on the used target logsheets before photocopying them. He also confirmed that the used platinum targets were handed directly to the appellant on a number of occasions. Tan stated that, had he seen the handwritten markings on the used target logsheets which Ramesh was asked to cover up, he would have immediately concluded that someone in Heraeus was involved in the theft.

The defence

19 The appellant’s defence on both charges in the court below was that he was not the mastermind of the conspiracy. Rather, he was merely carrying out the instructions of his superior, one Ramachandran Viswanathan ("Ram"). Ram was a director of Heraeus at the material time. In his examination-in-chief, he alleged that he met with Saravanan at the McDonald’s restaurant on instruction from Ram. However, he did not call on Ram to give evidence to support his case.

20 He also denied that he had called Saravanan at the latter’s office to check on the quantity of used targets for collection. He insisted that the standard procedure was for Seagate to send an e-mail to Heraeus...

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