Ang Jeanette v PP

• Jurisdiction: Singapore
• Judgment Date: 26 April 2011
• Date: 26 April 2011
• Docket Number: Magistrate's Appeal No 148 of 2010
• Court: High Court (Singapore)

Ang Jeanette

Plaintiff

and

Public Prosecutor

Defendant

[2011] SGHC 100

VK Rajah JA

Magistrate's Appeal No 148 of 2010

High Court

Criminal Law—Statutory offences—Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65 A, 2000 Rev Ed) —Offender entering into arrangement having reasonable grounds to believe that by the arrangement retention of moneys fraudulently transferred from US to Singapore bank accounts was facilitated—Whether Prosecution required to prove as element of actus reus that moneys involved were benefits of criminal conduct—How to prove criminal conduct—Whether foreign certificate required to prove criminal conduct—Whether criminal conduct proved—Section 44 (1) (a) Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65 A, 2000 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Principles—Offender entering into money laundering arrangement—Whether need for deterrent sentencing in money laundering offences

Words and Phrases—Meaning of ‘knowing’—Meaning of ‘reasonable grounds to believe’—Meaning of ‘benefits of criminal conduct’—Offender entering into arrangement knowing or having reasonable grounds to believe that by the arrangement retention of benefits of criminal conduct was facilitated—Section 44 (1) (a) Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65 A, 2000 Rev Ed)

The Appellant was charged with five counts of an offence under s 44 (1) (a) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65 A, 2000 Rev Ed) (‘the CDSA’) for remitting a total of more than S$2 m on various occasions in June and July 2008 to, inter alia, one Michael Walters (‘Michael’) . In June 2008, the Appellant's brother (‘Richard’) called her and told her to take instructions from one ‘Mike’ who would call her shortly regarding receiving money from someone and remitting it overseas. Following instructions from Mike, she met Mesenas Aloysious James (‘Aloysious’) on various occasions and remitted the moneys that she had received from him.

At the trial, the Prosecution led evidence from Michael A Nail (‘Nail’) , a Special Agent with the US Federal Bureau of Investigation (‘FBI’) , who was the lead investigator in an FBI investigation concerning several fraudulent money transfers from various bank accounts in the US (‘the US bank accounts’) to several bank accounts in Singapore (‘the Singapore bank accounts’) . At the close of the Prosecution's case, the Appellant made a submission of no case to answer, elected not to testify and adduced no evidence on her own behalf, contending that the Prosecution had not satisfied the requirement to produce a foreign certificate in order to prove that a foreign serious offence, from which the moneys were derived, had occurred.

The Appellant was convicted on all five charges preferred against her and sentenced to a total of nine months' imprisonment. The Appellant appealed against her conviction and sentence.

Held, dismissing the appeal:

(1) The Prosecution was required to prove, as an element of theactus reus of an offence under s 44 (1) (a) , that the moneys involved were in fact benefits of criminal conduct. To facilitate the prosecution of money laundering offences, s 44 (1) (a) of the CDSA went beyond the legislative baselines mandated by the international conventions, to which Singapore had formally acceded, by lowering the mens rea threshold for such offences to that of ‘reasonable grounds of believe’. However, the legislative intention was not to do away with an element of theactus reus, viz, that the moneys so dealt with were actually derived from offences or were proceeds of crime: at [30], [31], [35] and [45].

(2) In order to show that there was some criminal conduct from which the moneys involved in the arrangement were derived, the Prosecution had to adduce some evidence linking the moneys in question with some act that might constitute one or other of the offences (or classes thereof) listed in the Second Schedule to the CDSA (‘the Second Schedule’) , from which the moneys dealt with were derived, and in which the other person was or had engaged, or from which such other person had benefited. Circumstances could also arise where the only logical inference to any reasonable person was that the moneys involved in the arrangement were criminal property, and that the other person engaged or had engaged in, or had benefited from, criminal conduct. However, the Prosecution did not have to satisfy the court beyond a reasonable doubt that all the constituent elements of a specific offence listed in the Second Schedule had been met: at [58].

(3) The mere fact that the criminal conduct occurred in a place outside Singapore did not necessarily mean that that conduct constituted a ‘foreign serious offence’ so as to necessitate the production by the Prosecution of a foreign certificate in order to prove that criminal conduct from which the moneys were derived had occurred. Evidence pertaining to criminal conduct that took place outside Singapore could be led to show that an act constituting one or another of the offences listed in the Second Schedule had been committed, if that offence was defined in the statute criminalising the act as having been committed when committed in a place outside Singapore: at [56] and [59].

(4) Circumstances could well arise in which information was received in Singapore from a foreign jurisdiction pertaining to the transfer into Singapore of moneys derived from or representing the proceeds of criminal conduct which took place in that foreign jurisdiction. If the state of the information was such that it was insufficient by itself to constitute an offence under the Second Schedule or to give rise to the inference that such an offence had been committed, then it was necessary for the Prosecution to produce a certificate purporting to be issued by or on behalf of the government of that foreign jurisdiction stating the offence (other than a drug trafficking offence) against the laws of that foreign jurisdiction which was constituted by that act purportedly taking place or having taken place there. Where a foreign certificate was required, not only had to that impugned act constitute an offence in that foreign jurisdiction (as stated in the foreign certificate) , it had to, in addition, also constitute an offence listed in the Second Schedule if it had occurred in Singapore. This was to ensure that the courts did not criminalise the handling of moneys derived from conduct which would not constitute a serious offence in Singapore if it had occurred here: at [60] and [61].

(5) Even without producing a foreign certificate, the Prosecution had adduced evidence that gave rise to a logical inference that conduct constituting a serious offence under the Second Schedule had taken place and that the moneys handled by the Appellant represented the benefits of such criminal conduct. In addition, the Prosecution's evidence also established that Michael had been engaged in, or had benefited from, criminal conduct. Through Nail's oral testimony as to the results of his team's investigations in the US as well as the bank records produced by the Singapore banks showing the transfer of large sums of money from the US bank accounts to the Singapore banks' accounts, the Prosecution had adduced ample evidence that the moneys had been stolen from the US bank accounts; alternatively, cheating had occurred in the US to dishonestly induce the transfer of the moneys from the US bank accounts to the Singapore bank accounts. Further, the circumstances in which the Appellant handled the moneys would have led any reasonable observer to surmise that some dishonest conduct was afoot and that the moneys so handled were derived from such dishonest conduct. Thus, a compelling inference, given all the facts adduced by the Prosecution, would be that the stolen moneys were dishonestly received into the Singapore bank accounts. Dishonest receipt of stolen property was an offence specified in the Second Schedule: at [67] to [69].

(6) It was also clear that the Appellant had reasonable grounds to believe that the moneys she was dealing with were the benefits of criminal conduct. The circumstances under which she was told by Richard to follow Mike's instructions, and those under which she received the moneys were extremely suspicious. Her statements to the CAD also revealed that she had reasonable grounds for believing that the moneys she was remitting were derived from criminal conduct. Her reluctance to remit any more money after her last assignment clearly indicated that she thought that she was aiding in the retention of what she reasonably believed were benefits of criminal conduct: at [71] and [72].

(7) The aggregate sentence of nine months' imprisonment could not be said to be manifestly excessive. Even though the suspicious circumstances in which the Appellant actively facilitated the retention by Michael of more than S$2 m would have made it abundantly clear to her and any reasonable observer that the moneys were tainted by some improper criminal conduct from which they had been derived, she neither sought an explanation from anyone who participated in the arrangement, nor did she even attempt to explain her conduct to the court. The irresistible inference to be drawn from her silence in court was that she had nothing positive to say in her own defence. Further, given Singapore's standing as a major international financial centre, there was a compelling need to deter would-be money launderers by sending a clear signal to those who might wish to conduct money laundering activities here that if they were apprehended, they would be firmly dealt with: at [73].

[Observation: The prosecution of an accused person who laboured under the mistaken belief that the moneys were benefits of...