Ang Jeanette v Public Prosecutor

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 26 April 2011
• Neutral Citation: [2011] SGHC 100
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 148 of 2010
• Published date: 03 May 2011
• Year: 2011
• Hearing Date: 23 September 2010
• Plaintiff Counsel: Roderick Edward Martin, SC and Mohamed Baiross (Martin & Partners) and Vijay Kumar (Vijay Kumar & Co)
• Defendant Counsel: Christopher Ong Siu Jin and Magdalene Huang (Attorney-General's Chambers),Goh Yihan (Faculty of Law, National University of Singapore) (Young Amicus Curiae).
• Subject Matter: Criminal Law
• Citation: [2011] SGHC 100

V K Rajah JA: Introduction

By employing the latest technology, enormous amounts of money can be easily moved around the globe from country to country and from account to account almost instantaneously. Efforts to track the movement of the proceeds of crime are frequently unsuccessful, given the smokescreens and layering that envelop such transactions and the sophistication of underground banking systems. The concealment of proceeds from crime has in itself become a global industry. Attempts to snuff out money laundering activities are akin to battling the Lernaean Hydra and the international nature of money laundering requires active international cooperation. International conventions have been entered into by many countries and these have found their way into domestic law. In Singapore, the legislative response to international initiatives is presently contained in the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“the CDSA”). Some absorbing issues of statutory interpretation and public policy have been raised in this matter. How has Parliament struck a balance between protecting the civil rights of individuals and the need to protect society from the scourge of money laundering by arming the enforcement agencies with effective legal tools?

This case involves appeals by Ang Jeanette (“the Appellant”), a 52-year-old businesswoman, against her conviction and sentence on five charges under s 44(1)(a) of the CDSA. The crux of the appeal against conviction pertains to the construction of s 44(1)(a) of the CDSA, and in particular, whether, in order to prove a charge under that said section, the Prosecution must establish that the moneys involved were in fact the benefits of criminal conduct. As will be seen, the answer to that question will also shed light on the other elements of the actus reus of the offence.

Background facts

In her grounds of decision rendered on 1 June 2010 (see Public Prosecutor v Jeanette Ang [2010] SGDC 232 (“the GD”)), the District Judge (“the DJ”) set out (at [3]–[25] of the GD) the salient facts in admirable detail. As an understanding of the facts of this case is necessary to facilitate an understanding of the legal issues, I will summarise them here.

Fraudulent bank transfers from the United States to Singapore

On 15 July 2008, the Commercial Affairs Department (“CAD”) received information that funds had been fraudulently transferred from the United States of America (“the US”) to accounts in Standard Chartered Bank (“SCB”) in Singapore. These accounts were in the names of two Singaporeans, Mesenas Aloysious James (“Aloysious”) and Ang Poh Seng (“Poh Seng”). In particular, Poh Seng’s account was registered under his sole proprietorship named CityAds Media (“CityAds”). In the course of investigation, it was revealed that Aloysious had also opened accounts in Development Bank of Singapore Limited (“DBS”), Oversea-Chinese Banking Corporation Limited (“OCBC”) and United Overseas Bank Limited (“UOB”) (together with SCB collectively called “the Singapore banks”), into which large sums of moneys had been transferred from the US. Withdrawals had also been made from all these accounts.

The bank records produced by the Singapore banks disclosed that between 13 June and 14 July 2008, the following transactions involving these bank accounts were made:

Date/ Amount received	Sender / Bank	Receiver / Bank	Date / Amount withdrawn
13 June 2008 US$473,000.00 (S$651,001.20)	Mark L Morris / Severn Savings Association, Maryland	Aloysious / DBS	13 June 2008 S$650,000.00
3 July 2008 US$343,897.00 (S$466,142.38)	James McCormick / Citibank NA, New York	Aloysious / UOB	3 July 2008 S$466,142.38
10 July 2008 US$894,871.17 (S$1,211,208.13)	Larry R Andrews / Orion Bank	CityAds / SCB	10 July 2008 S$1,211,208.12
11 July 2008 US$503,031.00 (S$679,091.85)	Larry R Andrews / Orion Bank	Aloysious / SCB	11 July 2008 S$679,091.00
14 July 2008 US$61,231.98 (S$82,683.79)	Richard D Kippes / Wachovia Bank, Philadephia	Aloysious / OCBC	14 July 2008 S$82,683.79

At the trial, Michael A Nail (“Nail”), a Special Agent with the US Federal Bureau of Investigation (“FBI”), who was the lead investigator in a FBI investigation concerning several money transfers from the US to the Singapore banks’ accounts, gave background information as to how the moneys found their way into the subject Singapore accounts. His testimony, which was not challenged by the Appellant’s solicitors, provides a compelling narrative detailing how a few manipulative individuals carried out an audacious banking scam and then moved the proceeds of their crimes across the globe in a bid to disguise the origins of the moneys.

In December 2007, the FBI received a complaint from a victim that his Home Equity Line of Credit (“HELOC”) account had been compromised by fraudsters who had wire-transferred US$280,000 from his HELOC account. A HELOC loan is typically obtained by consumers in the US on the value of their homes and is usually used to obtain money for emergency funds, college expenses and home repairs. This investigation revealed that Tobechi Onwuhara (“Tobe”) had called the victim’s bank, impersonated that victim’s identity (using call cards which concealed the phone number of the caller) and then wire-transferred US$280,000 to a bank in Hong Kong. Further investigations revealed that fraud on a massive scale involving several other accounts had been perpetrated in similar fashion. Tobe and Michael Walters (“Michael”) had conspired to fraudulently wire-transfer large amounts of money from the accounts of several hundred victims. The amount of money transferred abroad amounted to several millions of US dollars. Some of those wire transfers were made to the Singapore banks’ accounts opened in the names of Aloysious and Poh Seng and are reflected in the table at [5] above. Roland James Kesslar (“Kesslar”) was another Singaporean who featured in Nail’s investigations.

As a result of Nail’s investigations, nine persons who were responsible for wiring moneys for Tobe have been apprehended and sentenced in the US. Michael and Tobe remain at large while Kesslar was convicted in Singapore of an offence under s 39 of the CDSA on 4 August 2009 and fined $10,000.

The Appellant’s involvement

The Appellant is married with two children. Her highest educational qualification is the passing of the Singapore ‘A’ Level examination. She has been in business for 20 years and was at the material time running a modest retail trade store called “The Gift Shop”. Her store was at a split unit in Brooke Road, for which she paid S$550 in rent per month. It is material to also set out her financial situation. She had a POSB account which had a balance of some S$20,000 as at April 2008 but that balance dropped to S$6,515.12 in July 2008.

The Appellant’s brother, Richard Ang (“Richard”), had been released from prison in 2006. He lived with her for a while after his release but left sometime in July 2006. The Appellant knew he was overseas but did not know exactly where. On 13 June 2008, Richard called her, saying that he was in trouble and needed her help. He told her that one “Mike” would call her shortly and she was to take instructions from him regarding receiving money from someone and remitting it overseas. When she queried him what the money was for and whom she would be remitting it to, he told her not to worry and that he would talk to her later. Shortly after that, she received a telephone call from someone with an American accent who introduced himself as “Mike”. Mike instructed her to proceed to the DBS branch at Shenton Way and meet someone called Aloysious. Even though she did not know who Aloysious was, she complied with Mike’s directions and met Aloysious as instructed. There, in her presence, Aloysius withdrew money, placed it in a bag, and asked her to carry the bag as he had a limp. They got into a car and Aloysious counted the money, kept some and then handed the balance to her, telling her to wait for further instructions. She later received a call from Mike who instructed her to remit the money through any remittance agent whom she was familiar with, using details that she received via an SMS text message. She went to a money-changing and remittance company at Parkway Parade, Yakadir Pte Ltd (“Yakadir”), and made two remittances to Michael, splitting up the remittances as instructed by Mike. She was not paid for these remittances and did not tell her husband about them.

On 3 July 2008, she received another request from Mike to remit more money. Though she was initially reluctant, she later acceded to his request when he said that it would be helping Richard and added that “there would be something in it” for her. Acting upon Mike’s instructions, she contacted Aloysious and met him at the UOB branch at Battery Road. In the bank, Aloysious passed her the money and they went to her car where Aloysious counted the money, kept some and passed the rest to her. She proceeded to a branch of OCBC and deposited the money into Yakadir’s account with OCBC. She called Yakadir and instructed them to remit the money to Michael in Indonesia. Mike told her to keep the balance of $50,000 which he would get from her later. The next day, she met Mike and passed him that sum of money in an envelope, out of which he gave her two $1,000 notes. Mike told her that Richard was fine. In her statements to CAD, she said that at that time, it did cross her mind that it was “fishy money” but she “put it out of [her] mind”. She also stated that Aloysious (from whom she had received the moneys) had not offered any explanation for the money, stating further that she “did not ask him [ie, Aloysious]” and “didn’t want to know”.¹

Her next encounter...