Chan Wing Seng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 14 March 1997
• Neutral Citation: [1997] SGHC 60
• Date: 14 April 1997
• Subject Matter: Whether horse owner is guilty of corruption when rewarding jockeys for winning races on his horse,Corruptly giving gratification,Reasonable doubt,Whether accused aware that action corrupt by ordinary and objective standard,Casting of reasonable doubt as to existence of corrupt element in transaction,Words and Phrases,Criminal Law,Prevention of Corruption Act,Evidence,Proof of evidence,'Corruptly',Whether genuine tokens of appreciation or tipping for performing well must necessarily infect transaction with corrupt element,s 5(b)(i) Prevention of Corruption Act (Cap 241, 1993 Ed),Sanction of gratification by Malayan Racing Association –Whether corrupt element in transaction according to ordinary and objective standard,Statutory offences,Whether horse owner guilty of corruption for rewarding jockeys for winning races,Onus of proof
• Docket Number: Magistrate's Appeal No 326 of 1996
• Published date: 19 September 2003
• Defendant Counsel: Amarjit Singh (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: R Ramason (R Ramason) and Harbajan Singh (Daisy Yeo & Co)

The charges

The appellant was charged on two similar counts in the court below for having, on two separate occasions, given a gratification of a sum of $3,000 to two jockeys as a reward for riding his racing horse Oryx`s Explorer to win their respective races, thereby committing an offence punishable under s 5(b)(i) of the Prevention of Corruption Act (Cap 241, 1993 Ed) (PCA).

Section 5(b)(i) of the PCA states:

Any person who shall by himself or by or in conjunction with any other person -

(b) corruptly give, promise, or offer to any person whether for the benefit of that person or of another person, any gratification as an inducement to or reward for, or otherwise on account of -

(i) any person doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed;

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both.

At the end of the trial, the appellant was convicted on both counts and sentenced to pay a fine of $30,000 in respect of each offence, in default six months` imprisonment for each charge.

The appellant appealed against his conviction. At the conclusion of the hearing on 25 March 1997, I allowed the appeal. I now give my reasons.

The prosecution`s case

The evidence led by the prosecution was not materially in dispute. The key facts were as follows:

(a) the appellant was a horse owner registered with the Malayan Racing Association (MRA);

(b) the two jockeys, one Yeap Poh Keat (Yeap) and one Saimee bin Jumaat (Saimee), to whom the appellant gave a sum of $3,000 each, were both registered with the MRA;

(c) the MRA is a voluntary association registered under the Societies Acts of Malaysia and Singapore, and its members consist of three Malaysian turf clubs and the Singapore Turf Club (STC);

(d) MRA regulates the process of horse-racing, whilst the member turf clubs provide the facilities for the races. All horse owners, trainers and jockeys must therefore abide by its rules and regulations;

(e) Yeap, who was PW4, testified that he rode a horse owned by the appellant named Oryx`s Explorer and won first place in a race conducted by STC on 3 December 1994. A few days later, he received by post at his residence a cheque made out in his name to the amount of $3,000. A note was attached but Yeap said he had since thrown it away. Anyway, Yeap said that the note identified the sender of the cheque as the appellant and stated that the cheque was in appreciation of his victory at the races for which he accepted.

(f) Saimee, who was PW5, testified that he rode the same horse on 21 January 1995 andwon first place. He said that he also received, a few days later, a cheque by post at his residence. The cheque was for $3,000 but he could not remember whether any note was attached. Saimee, however, said that he telephoned the appellant to ask what the cheque was for. When told that it was a token in appreciation of his victory at the races, he accepted the money and deposited it into his bank account.

(g) Both Yeap and Saimee testified that they did not communicate with the appellant before or after their races; no offers of money was ever made to them in relation to their performance at the track. Neither did the trainer of Oryx`s Explorer convey any words from the appellant to them.

The crux of the prosecution`s case was that, by giving the jockeys money, the appellant ran foul of r 48 of the MRA which states:

In the absence of special agreement to ride for a lower sum, the fee to a jockey shall be $120. A winning jockey shall in addition to the fee be entitled to 10% of the gross stakes and added money payable to the owner and except as aforesaid no further charges shall be made except as may be decided by the committee from time to time. Notice of any such further charge shall be published in the Calendar Supplements. The trainer of a winning horse shall be entitled to 10% of the gross stake and added money payable to the owner. All monies payable to or receivable by jockeys and trainers under this rule shall be deducted from the stake and added money by the Secretary who shall pay over the monies so deducted to the persons entitled.

Rule 200(1) of the MRA further reads:

Any person within the jurisdiction of the association who:

(1) corruptly gives directly or indirectly, any money present or wager in any form to any person having official duties in relation to a race or race horses, or to any jockey may be disqualified, and such disqualification, if imposed, shall take effect as from the day of the offence or from such other date as the committee may determine. [Italics mine.]

The prosecution contended that the appellant knew of these rules and by breaching them, he was guilty of corruption. Its contention was that these purported gifts were really an attempt to give the jockey community an impression that, if they rode his horses to winning places, they would be similarly rewarded.

The defence

The appellant was the sole witness for the defence. He did not challenge the key facts. However, he contended that no offence was committed because the cheques to the two jockeys were bona fide gifts. They were tokens of appreciation from him for winning their respective races riding his race horse. Hence, the thrust of the defence was that the appellant lacked the necessary mens rea in that he did not give the money to Yeap and Saimee with a corrupt intent.

Furthermore, he contended that r 48 of the MRA merely stipulated the amount of money that a jockey could legitimately receive and the person from whom he could legitimately receive the money. However, r 48 did not preclude horse owners from giving jockeys gifts.

The decision below

The trial judge considered r 48 of the MRA and concluded that, although it contained no express provision prohibiting a horse owner from paying money to a jockey, it was implicit in r 48 that he could not do so.

Next, he considered whether it was an offence caught by s 5(b)(i) of the PCA to make such payment to a jockey in breach of MRA rules. On the facts, he found that the appellant could not show that his cheques were bona fide gifts due to their amount, the absence of any special relationship between the appellant and the jockeys, and the circumstances in which the payments were made.

Consequently, having found that the appellant had breached the rules knowingly, he concluded that the appellant had acted with a corrupt intent. In any event, he reasoned that, even if the appellant was unaware of the MRA rules, he would still have acted with corrupt intent because he would have known that the giving would put the jockey under a temptation not to do his best unless he got the gratification.

Finally, he rejected the argument that the appellant could be excused on the basis that it was customary for horse owners to reward their winning jockeys. He held that an act was no less corrupt simply because it had become customary. In any case, evidence of such custom was inadmissible under s 23 of the PCA.

Therefore, the trial judge concluded that the prosecution had proved its case beyond a reasonable doubt, and he convicted the appellant of the two charges accordingly.

Issues in the appeal

corrupt element in the transaction guilty knowledge The issues in this appeal were twofold:

(a) whether there was a when the appellant gave the money to his winning jockeys. Before deciding this question, which was an objective inquiry, the court had to consider the effect of the contravention of some rules, if any, as well as to infer what the appellant intended when he made the gratification. Pertinent to this latter aspect was the question of whether a horse owner who intended to reward his jockey for doing his best and winning would be guilty of corruption, bearing in mind that this was a legitimate expectation;

(b) if the previous question could be answered in the affirmative such that a corrupt element was found to exist, then it would be necessary to ask whether there was a corrupt intent on the part of the giver in the sense of whether he knew or realised what he did was corrupt according to the ordinary and objective standard. In other words, was there ?

The appeal

The law

An instructive case to begin with was that of PP v Khoo Yong Hak [1995] 2 SLR 283 where this court, in considering some of the English statutory provisions, held that the acts discountenanced by the law in those provisions were carefully circumscribed and a corrupt intent was almost inherent in each of those acts so prohibited. There was thus no need to search further for a corrupt intent, be it in the transaction or in the state of mind of the accused.

This court further held that `to accept and apply the general English position to [s 5(b)(i) PCA], the preposterous effect would be that any intentional gratification given to any person as an inducement or reward in relation to any matter or transaction would be sufficient to constitute a criminal offence, subject to the prosecution`s discretion to prosecute. It is clear that s 5(b)(i), albeit drafted in wide terms, is not intended to have such an effect `.

It was concluded that, in deciding whether the element `corruptly` had been satisfied in s 5(b)(i), the court must be `satisfied beyond a reasonable doubt that there is a corrupt element in the transaction and a corrupt intent present on the part of the person giving.`

Whether a transaction has a corrupt element is an objective inquiry that is essentially based on the ordinary standard ofthe reasonable man. This question is to be answered only after the court has inferred what the accused intended when he entered into the transaction. The contravention of some rules or laws can also assist the court in deciding whether the intended transaction is corrupt according to the objective criteria. This is done by looking at the purpose behind the rules or laws. For example, if they...