Balasundaram s/o Suppiah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 25 August 2003
• Neutral Citation: [2003] SGHC 182
• Court: High Court (Singapore)
• Published date: 02 October 2003
• Year: 2003
• Plaintiff Counsel: Appellant in person
• Defendant Counsel: Christopher Ong Siu Jin (Deputy Public Prosecutor)
• Subject Matter: Criminal Procedure and Sentencing,Appeal,Whether judge's findings against weight of evidence,Principles applicable in appeal against findings of fact,Reversal of trial judge's decision only where appellate court convinced of wrong decision,Sentencing,Criminal breach of trust,Criminal breach of trust by a servant,Aggravating circumstances,Relevance of value of property misappropriated,Evidence,Witnesses,Inconsistencies in testimony,Inconsistencies minor in nature or related to minor issues Whether evidence in respect of key issues undermined,Whether court entitled to accept one part of testimony and reject other part
• Citation: [2003] SGHC 182

The appellant was convicted in the district court of an offence under s 408 of the Penal Code (Cap 224) and sentenced to 20 months’ imprisonment, to commence upon the expiry of the sentence he is presently serving. He appealed against both his conviction and sentence. I dismissed both appeals, and enhanced the sentence to 36 months’ imprisonment, to commence upon the expiry of the sentence he is presently serving. I now give my reasons.

Preliminary issue

2 The appellant was charged as follows:

You, … are charged that … on the 27^th day of September 2000 at Block 2 Geylang Serai, #01-32, Singapore, being employed as a general manager of Seven Entertainment & Café Pte Ltd, and in such capacity entrusted with certain property, to wit, cash of $7,000, committed criminal breach of trust with respect to the said property by dishonestly converting it to your own use, and thereby committed an offence punishable under s 408 of the Penal Code.

3 The appellant was originally charged under s 409 of the Penal Code, which involves the offence of criminal breach of trust by an agent. However, the trial judge found on the evidence that the appellant was not an agent of Seven Entertainment & Café Pte Ltd (“Seven Entertainment”), but merely an employee. She amended the charge accordingly, and the respondent did not take issue with this finding and the amendment.

Background facts

4 In May 2000, the appellant, who was running a coffee stall at Mohamed Sultan Road, decided to take over an existing pub at 16 Mohamed Sultan Road. The new club was to be called ‘Club 7’, and the company Seven Entertainment was incorporated on 13 June 2000. As he had little in the way of financial resources, the appellant approached his brother, Elangovan, as well as Goh Boon Leong (“Goh”) and Ng Kim Wah (“Ng”) to become shareholders. Goh and Ng were approached in August 2000, and both agreed to invest. Goh was to hold 20% of the shares in Seven Entertainment, while Ng and Elangovan would hold 40% each.

5 Club 7 opened for business on 7 September 2000. As Seven Entertainment held a public house first class liquor licence, it had to pay a 1% cess tax on the monthly sales of food and beverages. Therefore, on 26 September 2000, the appellant went to the Inland Revenue Authority of Singapore (“IRAS”) to apply for cess registration. IRAS issued the approval letter on the same day, subject to the payment of a $7,000 security deposit made payable to the Singapore Tourism Board.

Prosecution’s case

6 It was the prosecution’s case that when Ng was informed of the need to pay the security deposit on 27 September 2000, he instructed his cashier Chew Kooi Choon Christine (“Christine”), to pass $7,000 cash to the appellant atNg’s goldsmith shop Kedai Emas Kampung Melayu (“Kedai Emas”) at Block 2 Geylang Serai #01-32 on the same day. He also asked Loh Poh Chwee Dick (“Dick”), who was in charge of the renovations of Club 7, and with whom he had previous business dealings, to drive the appellant from Club 7 to Kedai Emas, and then to IRAS to make the payment. However, the appellant did not use the cash to pay the security deposit. Instead, he converted the money to his own use, paying $4,758.01 to Hong Leong Finance Limited to settle the arrears on his car (which was in his brother’s name, but of which he had primary use) which had been repossessed, and keeping the rest. When questioned by Dick, Christine and Ng, the appellant lied and said that the security deposit had been paid, but that there was no receipt because IRAS would send one by post later.

7 His actions were only discovered on 4 December 2000, when Christine spoke with Chew Woon Leong Stanley (“Stanley”), a tax officer with IRAS, and found out that the security deposit was still unpaid. She then informed Dick and Ng, and the latter reprimanded the appellant. The next day, Ng went down to IRAS with another of Club 7’s employees, Manimaram S/O Devan, to meet Stanley and make the payment. The appellant went to IRAS on the same day, where Stanley testified that the appellant first tried to pay the deposit, and then later claimed to have handed it to an Indian IRAS officer on 27 September 2000. Ng decided not to report the incident to the police after the appellant asked him for a second chance, explaining that he was in great financial difficulty and needed the money. However, Goh became aware of the incident sometime in March or April 2002, after he took over as managing director of Seven Entertainment. Goh called the appellant and asked him to return the money. On 20 June 2002, as the appellant had still failed to pay up, Goh made a police report. The appellant was subsequently charged.

The defence

8 The appellant did not dispute that he received the $7,000 on 27 September 2000, nor that he did not use it to pay the security deposit. However, he claimed that the money was actually a personal loan from Ng. He alleged that Ng was an illegal moneylender who had previously extended two loans of $20,000 to him, and that he had informed Ng on 27 September 2000 that he urgently needed another $5,000 loan to pay off the arrears on his brother’s car. Ng had then agreed to make available to him $12,000, of which $7,000 was to be used to pay the security deposit. However, when he arrived at Kedai Emas, he was informed by another cashier, Geng Poh Lian, that only $7,000 was available. As he was not able to contact Ng, he and Dick proceeded to IRAS where he was prepared to use the $7,000 to make payment. However, before he did so, he managed to contact Ng, who agreed to allow him to treat the $7,000 as a personal loan instead.

9 On 8 April 2002, the Corrupt Practices Investigation Bureau (“CPIB”) raided Club 7 and Club 3, another club with which Ng, Goh, Dick, Christine and the appellant were involved. The raid uncovered an offence of forgery of a public entertainment licence relating to the alteration of the occupancy load of Club 3, which the appellant initially admitted to. However, a month later, the appellant changed his story, alleging that Ng was the mastermind behind the forgery and that he was going to inform the CPIB of this, and of Ng’s other illegal activities. The appellant claimed that the police report was part of a conspiracy by Ng, Goh, Dick and Christine to damage his credibility.

Decision of the court below

10 The district judge highlighted the following ingredients of the offence under s 408:

(a) the accused must be an employee;

(b) he must have been entrusted, in such capacity, with property; and

(c) he must have committed breach of trust in respect of such property.

The element in dispute here is (iii). While the prosecution argued that the $7,000 was entrusted to the appellant to pay for the security deposit, the appellant claimed that Ng later agreed to allow him to treat the $7,000 as a personal loan.

11 The district judge considered the evidence carefully and found the prosecution’s case to be “compelling”, placing particular importance on Stanley’s evidence. She accepted the appellant’s argument that the other prosecution witnesses were possibly interested parties with a motive to lie, given their involvement with Club 3 and the appellant’s threats to expose Ng’s illegal activities to the CPIB. Therefore, she rightly treated their evidence with “extreme caution”, given the “real risk of collusion”. However, Stanley was an independent witness whose evidence was extremely convincing, especially since he had written out a note of the events of 5 December 2000 the very next day, when everything was still fresh in his mind. His account of Christine’s and Ng’s surprise at discovering that the deposit was unpaid, and the appellant’s actions at IRAS on 5 December 2000, supported the prosecution’s case that the appellant had dishonestly converted the money for his own use, and later tried to cover it up.

12 Having convicted him under s 408, the district judge went on to sentence him to 20 months’ imprisonment. Although she noted that the normal sentence for a first offender in cases involving such a...