Bachoo Mohan Singh v Public Prosecutor and another matter

• Court: Court of Appeal (Singapore)
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 15 July 2010
• Neutral Citation: [2010] SGCA 25
• Citation: [2010] SGCA 25
• Defendant Counsel: Jennifer Marie SC, Aedit Abdullah, Kan Shuk Weng, Mohamad Faizal, Peggy Pao and Ang Feng Qian (Attorney-General's Chambers)
• Published date: 20 July 2010
• Plaintiff Counsel: Michael Hwang SC and Darius Chan (Chambers of Michael Hwang SC), Ang Cheng Hock SC (Allen & Gledhill LLP) and Eugene Thuraisingam and Vinesh Winodan (Stamford Law Corporation)
• Hearing Date: 06 May 2010,15 July 2010
• Docket Number: Criminal Reference Nos 1 and 2 of 2010
• Date: 15 July 2010
• Subject Matter: Criminal Law,Civil Procedure

V K Rajah JA:

In these criminal references, this court has to consider questions of law of public interest relating to how s 209 of the Penal Code (Cap 224, 1985 Rev Ed) (“the PC”) should be construed and the scope of lawyers’ duties to verify their client’s instructions. These criminal references arise from the conviction of Bachoo Mohan Singh (“BMS”), an advocate and solicitor of some 36 years’ standing, in the Subordinate Courts by a district judge (“the District Judge”) (see Public Prosecutor v Bachoo Mohan Singh [2008] SGDC 211 (“BMS (No 1)”)). BMS had been convicted of abetting (by aiding) his client to dishonestly make a false claim in court, under s 209 (read with s 109) of the PC. Section 209 states:

Whoever fraudulently, or dishonestly, or with intent to injure or annoy any person, makes before a court of justice any claim which he knows to be false, shall be punished with imprisonment for a term which may extend to 2 years, and shall also be liable to fine.

BMS’s conviction was subsequently affirmed by a High Court judge (“the High Court Judge”) (see Bachoo Mohan Singh v Public Prosecutor [2009] 3 SLR(R) 1037 (“BMS (No 2)”)). In this judgment, the terms “advocate”, “solicitor” “lawyer” and “counsel” (and their plural forms) are used interchangeably to refer to legal professionals qualified to practise in our courts, or, if the context so indicates, other courts.

According to BMS’s counsel, this matter has the dubious distinction of being the first known case in the Commonwealth’s legal annals where a lawyer has been convicted of abetting his client in the making of a false claim. This is also the first known case in Singapore involving a prosecution in relation to s 209 of the PC even though this provision has been in force in Singapore for well over a century. In India, no lawyer appears to have ever been prosecuted in connection with such an offence under s 209 of the Penal Code 1860 (Act 45 of 1860) (India) (“the Indian Penal Code”) (the progenitor to s 209 of the PC (see [54] below)) since the Indian Penal Code was first enacted. Nevertheless, despite the extraordinary nature of this matter, there was initially animated and protracted wrangling about the propriety of this court entertaining these references. I am therefore glad to note that both parties now accept that there are important questions of law of public interest. However, before considering the problematic questions of law raised by these references, I should first state the facts.

Background facts and the underlying proceedings Background facts

The facts have been reprised in detail in my judgment in Bachoo Mohan Singh v Public Prosecutor and other applications [2010] 1 SLR 966 (“BMS (No 3)”) (at [5]–[14]), in which this court (by a majority) granted an extension of time for both BMS and the Prosecution to apply to the High Court Judge for leave to raise, to this court, questions, pursuant to s 60(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”). Therefore, I will only repeat what I consider to be the essential facts, although a more granular approach has been adopted on some aspects.

BMS’s offence has its roots in the seemingly innocuous sale and purchase of a flat located in Redhill (“the Flat”), by Koh Sia Kang (“Koh”) and his wife, Kang Siew Guek (“Kang”), to Hong Swee Kim (“Hong”) and his wife, Elizabeth Bong (“Bong”). For ease of reference, Koh and Kang will be referred to collectively as “the Sellers” and Hong and Bong will be referred to collectively as “the Buyers”. The agents who represented the parties in this transaction were Tony Ho (“Ho”) and Teo Pei Pei (“Teo”), who worked for a real estate agency known as PropNex Realty Pte Ltd (“PropNex”) For ease of reference, Ho and Teo will be referred to collectively as “the Agents”. Ho was Teo’s supervisor. The law firm that originally acted for the parties in respect of the sale and purchase of the Flat was M/s Rayney Wong and Eric Ng (“M/s Rayney Wong”). However, the Sellers later sought legal advice from BMS, who was then employed as a consultant at M/s K K Yap & Partners (“M/s K K Yap”).

Prior to purchasing the Flat, the Buyers had sold their flat in Jurong and asked Teo to find a flat whose owners were prepared to enter into a cash-back arrangement. At or around the same time, Koh asked Ho to act for him in the sale of the Flat. Ho, in turn, arranged for Teo to be appointed as agent for the sale of the Flat. Soon after Ho’s appointment, Koh approached Ho on a number of occasions for loans, which Ho then arranged through a moneylender. It was envisaged that these loans would eventually be repaid from the sale proceeds of the Flat. Teo brought the Buyers to view the Flat on 30 September 2003. The Buyers were keen to purchase the Flat as the existing tenants would provide them with some income. There is no dispute that on the evening of 30 September 2003: the Agents told the Sellers that the Buyers were willing to purchase the Flat at $390,000; the Sellers told the Agents that they agreed to sell the Flat at $390,000; and the Sellers signed an option to purchase (“the OTP”) with the purchase price left blank. There is, however, a fierce controversy as to whether the Sellers had agreed to a cash-back arrangement. The Buyers’ and Agents’ evidence is that the Sellers were, at this point of time, agreeable to a cash-back arrangement, with the quantum to be determined after they obtained a valuation report for the Flat.¹ Koh has adamantly denied having ever agreed to the purported cash-back arrangement.

Eventually, the Flat was valued at $490,000 by CKS Property Consultants Pte Ltd.² Teo then proceeded to insert the figure of $490,000 into the OTP as the purchase price. As an aside, it is interesting to note that there was a previous valuation report from APC Property Consultants Pte Ltd that valued the Flat at $442,000 as of 18 September 2003.³ However, it appears that the Agents only received this valuation report after 30 September 2003. The Agents, it bears mention, never disclosed this report to the Sellers.⁴

The first appointment with the Housing and Development Board (“the HDB”) was scheduled for 2 December 2003. Just before the appointment, while waiting at the HDB office, Teo informed the Sellers that they had to declare to the HDB that the sale price of the Flat was $490,000.⁵ It is not disputed that Koh only came to know about the purchase price indicated on the OTP just before the first appointment.⁶ Koh, though unhappy with the inflated price, nevertheless proceeded to declare to the HDB officer that the $490,000 sale price stated in the OTP was the actual price. The Buyers also affirmed this as the correct price. After the first appointment, Teo brought the Sellers to M/s Rayney Wong’s premises to execute various documents, which (inter alia) authorised the law firm to distribute $100,000 of the sale proceeds to Kang.⁷ The Agents’ evidence was that Kang was chosen to be the go-between as she appeared more reliable. Kang, the Agents alleged, was supposed to withdraw the money and pass it to Teo, who would then hand the money over to the Buyers.

Koh testified that immediately after the first appointment at the HDB, he became deeply unhappy and perturbed about the regularity of the transaction. He felt that the Agents had cheated him by inducing him and his wife to sell the Flat below market value, and had taken advantage of his dire financial situation. He eventually approached BMS for legal help. On BMS’s advice, the Sellers made separate statutory declarations setting out the various alleged breaches of duties by the Agents, the law firm and the moneylenders involved in the cash-back arrangement. BMS testified that Koh’s instructions to him were as set out in the statutory declaration that Koh had made. Koh confirmed this. Based on these statutory declarations, complaints were lodged by Koh with the police, the Corrupt Practices Investigation Bureau (“the CPIB”), the HDB, the Inland Revenue Authority of Singapore (“the IRAS”), the Law Society of Singapore (“the Law Society”), and the Registrar of Moneylenders.⁸

Teo’s subsequent efforts to persuade the Sellers to continue with the transaction were unsuccessful. On 15 January 2004, a meeting was arranged by the Buyers (and their solicitors) at the premises of M/s K K Yap (“the K K Yap Meeting”).⁹ The meeting was attended by BMS, the Sellers, the Buyers and Ong Bee Lay (“Ong”), a solicitor from M/s PKWA Law Practice LLC, who attended at the Buyers’ request. The Agents were not invited. During this meeting, Hong informed BMS about the cash-back arrangement. In response, BMS tersely stated that “he did not want to know about [the] arrangements” from Hong and would sue on the price stated in the OTP.¹⁰ No settlement was reached. After the meeting, Ong advised the Buyers that the transaction was illegal (she had not been informed by Hong of these details prior to the meeting) and that she would not act for them in the transaction. The Buyers accepted her advice and called off the purchase.

On 28 January 2004 and 30 January 2004, BMS wrote letters to the Buyers’ solicitors, notifying them that the Sellers had decided to rescind the contract and would resell the Flat, and that if the Flat was to be sold for less than $490,000, the Sellers would make a claim for the damages suffered.¹¹ There was no response to these letters. Subsequently, the Sellers sold the Flat for $380,000.¹² On 2 April 2004, BMS sent a letter of demand to the Buyers, demanding payment of $120,000, comprising $110,000 (this being the difference between the inflated sale price of $490,000 and the price at which the Flat was eventually sold at) and $10,000 (for expenses).¹³ Once again, no response was given.¹⁴

On 10 April 2004, The Straits Times published an article (Tanya Fong, “Flat seller claims he was asked to inflate its price”, The Straits Times (10...