Bachoo Mohan Singh v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 25 May 2009
• Neutral Citation: [2009] SGHC 125
• Docket Number: Magistrate's Appeal No 134 of 2007; Criminal Motion No 5 of 2009
• Date: 25 May 2009
• Published date: 26 May 2009
• Year: 2009
• Plaintiff Counsel: Michael Hwang SC, Charis Tan En Pin (instructed), Ang Cheng Hock SC, Eugene Thuraisingam and Jacqueline Lee (Allen & Gledhill LLP)
• Citation: [2009] SGHC 125
• Defendant Counsel: Lee Sing Lit and Kan Shuk Weng (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Whether seller took part in cash back arrangement,Offences,Accused lawyer acting for seller knew that price stated in statement of claim was false and inflated,Criminal Procedure and Sentencing,Whether questions of law of public interest,General principles in determining questions were well-settled,Whether claim was a false one,Whether there was further appeal or other recourse after High Court dismissed application under s 60 Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed),False claim,Whether accused lawyer had actual or constructive knowledge that claim was a false one,Cash back arrangement between seller and buyer,Sentencing,Whether accused could file such application to the Court of Appeal under its "inherent jurisdiction" or "equity jurisdiction",Reference to Court of Appeal,Mere construction of words in statutory provisions,Criminal Law,Whether three months' imprisonment appropriate sentence

25 May 2009

Tay Yong Kwang J:

Magistrate’s Appeal No 134 of 2007

1 The appellant was charged under s 209 read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed) and convicted at the conclusion of a trial which took place from the end of March 2006 to 18 September 2007 before the district court. This offence is punishable with mandatory imprisonment for a maximum of 2 years and a discretionary fine. The appellant was sentenced to three months imprisonment by the district judge (“the DJ”) (see PP v Bachoo Mohan Singh [2008] SGDC 211) (“GD”). He appealed against the conviction and sentence. I dismissed the appellant’s appeal against conviction but partially allowed his appeal against sentence by reducing the original sentence of three months imprisonment to one month imprisonment and adding on a fine of $10,000.

The Charge under Section 209 and its elements

2 For easy reference, I shall first set out Section 209 of the Penal Code. It reads as follows:

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.

3 The charge against the appellant is as follows:

You, Bachoo Mohan Singh, M58 years old, NRIC S1079825F, are charged that you, sometime on or about the 12th day of April 2004, in Singapore, did abet by intentionally aiding one Koh Sia Kang to dishonestly make before a court of justice a claim which the said Koh Sia Kang knew to be false, to wit, by instructing Messrs KK Yap & Partners to file a writ of summons (engrossed with a statement of claim), on behalf of Koh Sia Kang and Kan Siew Guek, in the Subordinate Courts of the Republic of Singapore, against one Hong Swee Kim and Bong Yung Hua Elizabeth, which suit was duly filed by Messrs KK Yap & Partners vide DC Suit 1592/2004, which offence was committed in consequence of your abetment, and you have thereby committed an offence under section 209 read with section 109 of the Penal Code (Cap 224).

The prosecution’s case

4 In 2003, Hong Swee Kim (“Francis Hong”) and his wife, Elisabeth Bong, (collectively “the Hongs”) engaged a property agent, Teo Pei Pei (“Teo”), to sell their flat located in the Jurong West housing estate. Due to a miscalculation by Teo, after the interest on their loan paid with CPF funds was factored in, the entire sale proceeds had to be credited into the CPF accounts of the Hongs. As a result, the Hongs did not receive any cash from the sale proceeds of their flat.

5 At the same time, the Hongs also engaged Teo to look for a suitable flat for them to buy. Teo promised to assist the Hongs find a seller who would be prepared to engage in a “cash back” arrangement. Under such an arrangement, the selling price of a flat would be stated at an amount higher than the actual price agreed between seller and buyer. The inflated false price would then be declared by the buyer to the bank for the purpose of getting a higher housing loan. The bank, in reliance on the inflated price, will be misled into disbursing a larger amount of money to the seller who will in turn return the difference between the two prices, either in whole or in part, to the buyer. The buyer will have to pay back a higher loan amount to the bank eventually but, in the meantime, he will enjoy the benefit of having ready cash from the larger amount of the housing loan for his own use, whether for furnishing the purchased flat or for any other purpose.

6 Subsequently, Teo brought the Hongs to view the flat at Blk 82 Redhill Lane #02-75 which was jointly owned by Koh Sia Kang (“Koh”) and his wife, Kang Siew Guek (collectively “the Kohs”). The Hongs agreed to purchase the flat and Teo informed the Kohs that the Hongs wanted to have a cash back arrangement. The Kohs agreed to go along with such an arrangement. It was agreed between the Hongs and the Kohs that the sale price would be $390,000.

7 On 30 September 2003, Teo visited the Kohs at their flat and explained to the Kohs the cash back scheme. The evidence was that since the amount to be inflated was to be subject to the bank’s valuation of the flat, which was not available as at 30 September 2003, no price was inserted in the Option to Purchase (“Option”). Nevertheless, the Kohs duly signed the Option, knowing that the actual sale price of their flat was $390,000. Koh told Teo that he wanted to sell the flat as soon as possible and therefore agreed to participate in the cash back arrangement.

8 Subsequently, the Hongs signed the Option after being informed that the Kohs had agreed to the cash back scheme. Eventually, the bank valued the flat at $490,000 and that figure was inserted as the purported price in the Option. Under the cash back arrangement, the Hongs would therefore have $100,000 in cash after completion of the sale (inflated price of $490,000 minus the actual agreed price of $390,000).

9 On 2 December 2003, at the first appointment at HDB, Teo informed the Kohs that the inflated amount was $490,000. Koh was surprised and unhappy over the fact that the inflated amount was a figure higher than what he had expected. He grumbled that the buyers would stand to gain more than him financially. Notwithstanding his displeasure, the Kohs did not pull the plug then. Instead, they proceeded to declare to an HDB officer that the sale price of the flat was $490,000. Teo and the Hongs did likewise.

10 After the appointment at HDB, Teo brought the Kohs to the law firm of M/s Rayney Wong and Eric Ng to execute some documents in relation to the distribution of the sale proceeds. There, the Kohs signed a document which was exhibited as P11, item 2 of which states that the amount of $100,000 from the sale proceeds was to be paid to Kang, Koh’s wife. According to the original plan, upon receiving the sale proceeds, Kang would withdraw this $100,000 and pass the money to Teo, who in turn would hand it over to the Hongs. However, after the appointment at HDB on 2 December 2003, Koh decided that he wanted a cut of the $100,000 which represented the cash back proceeds.

11 Koh then approached the appellant, someone Koh admired greatly as a lawyer, for legal advice and explained the facts of the case to him. The appellant was at that time working as a consultant at the law firm of M/s KK Yap and Partners. The appellant advised Koh to let him take over the matter from the law firm of M/s Rayney Wong and Eric Ng.

12 In the meantime, Teo and her supervisor, Tony Ho (“Tony”) attempted to convince Koh to proceed with the original cash back scheme. Koh, however, informed Teo that he would only proceed if he was paid $20,000. The Hongs, however, were not agreeable to Koh being paid this amount. Koh had also wanted the law firm of M/s Rayney Wong and Eric Ng to change the payee for the said $100,000 to his name but was told that it could not be done.

13 On the advice of the appellant, Koh proceeded to make a number of complaints to various authorities. The appellant also prepared statutory declarations for Koh and Kang to sign. Koh’s statutory declaration, dated 12 January 2004, clearly stated that Koh had agreed to sell the flat at the price of $390,000.

14 Teo, meanwhile, made a number of desperate attempts to dissuade the Kohs from abandoning the cash back scheme. As a result, a meeting was held at the premises of M/s KK Yap and Partners on 15 January 2004 (the “KK Yap meeting”). This meeting was attended by the Kohs, the Hongs and the appellant. Teo was not allowed to be present at the meeting. A solicitor, Ms Ong Bee Lay (“Ong”), also attended the meeting at the request of the Hongs. Ong was acting for the mortgagee (DBS Bank), the CPF Board and the HDB in the sale transaction of the flat. The final person at the meeting was someone else from M/s KK Yap and Partners. Prior to this meeting, Ong had no knowledge at all about the cash back scheme.

15 At the KK Yap meeting, Francis Hong specifically informed the appellant that there was an agreement between him, his wife and the Kohs to purchase the flat for $390,000 and that the $100,000 in excess of the agreed price was to be handed over to the Hongs. The appellant replied that he did not care about the arrangement and informed the Hongs that he would sue on the price stated on the Option.

16 There was no agreement reached at the KK Yap meeting. After the meeting was over, Ong advised the Hongs of the illegal nature of the cash back scheme and informed them that they should not proceed with the transaction and that she would not act for them in completing the sale. The buyers sensibly accepted her advice and pulled out from the transaction.

17 Meanwhile, the appellant told Koh that he could sue the Hongs. However, in order to do so, Koh must first sell his flat. The appellant introduced Koh to a new housing agent so that the flat could be sold within the shortest possible time. The appellant also advised Koh that there was no need for him to purchase the Bukit Purmei flat which Teo had found for him.

18 In or around February 2004, the appellant signed and sent two letters (exhibited as P16 and P17) to the HDB and Inland Revenue Authority of Singapore (“IRAS”) respectively. P16 and P17 contain clear references to the $100,000 being returned to the Hongs and to the transaction price for the flat being $390,000. Indeed, in the second last paragraph of both letters, this statement appears:

Our clients [i.e. Koh and Kang] are concerned that Ho and Teo have induced our clients to unknowingly make false statements to HDB, assist the purchasers in cheating the bank and CPF Board in obtaining a larger loan and larger amounts of withdrawals respectively and Teo in making a false Statutory Declaration to HDB.”

19 Eventually, the Kohs could only sell their flat for $380,000 to some other buyer. They signed an option dated 21 March 2004. This amount was $10,000 less than what was...