Chiaw Wai Onn v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 06 June 1997
• Neutral Citation: [1997] SGHC 153
• Docket Number: Magistrate's Appeal No 309 of 1996
• Date: 06 June 1997
• Published date: 19 September 2003
• Year: 1997
• Plaintiff Counsel: Uthayasurian Sidambaram and Goh Lam Chuan (KS Chia Gurdeep & Param)
• Citation: [1997] SGHC 153
• Defendant Counsel: Jasbendar Kaur (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Rules of construction,s 217(2) Effect of proviso in Criminal Procedure Code (Cap 68),Proof of evidence,Whether appellant's presence at all relevant stages of criminal enterprise went beyond mere presence,s 414 Penal Code (Cap 224),Whether High Court in its appellate capacity had power to alter judgment,Appeal,Burden of proof of guilty knowledge,s 217(2) Criminal Procedure Code (Cap 68),'Rises for the day',Whether guilt to be proven beyond shadow of doubt or beyond reasonable doubt,Power of appellate court to alter judgment,Abetment,'Any other mistakes',Criminal Law,Wilful blindness,Whether alternative limb of 'reason to believe'could be proven to satisfy mens rea under s 414 charge,s 217 Criminal Procedure Code (Cap 68),Evidence,Standard of proof,Whether guilty knowledge could be inferred,Whether appellant had guilty knowledge that goods were stolen,Words and Phrases,Whether s 217 a substantive enactment with regard to High Court,Circumstantial evidence,Criminal Procedure and Sentencing,Mens rea

The charge

The appellant was charged and convicted in the court below for the following offence:

You,

Chiaw Wai Onn, 32 years

NRIC No S1604147E

are charged that you, sometime in July 1993, at a warehouse in Penjuru Road, Singapore, did abet one Poon Peng Huat in the commission of an offence, to wit, the said Poon Peng Huat voluntarily assisted in disposing of 640 pieces of `Hewlett Packard` computers valued at $1,855,072 which he knew to be stolen property, by intentionally aiding the said Poon Peng Huat by providing him with cash to acquire the stolen computers which offence was committed by the said Poon Peng Huat in consequence of your abetment, and you have thereby committed an offence punishable under s 109 read with s 414 of the Penal Code (Cap 224).

In so far as relevant, s 414 of the Penal Code (Cap 224) states as follows:

Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment for a term which may extend to 3 years, or with fine, or with both; ... [Italics mine.]

And s 109 of the Penal Code states:

Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

At the end of the trial, the appellant was convicted and sentenced to 12 months` imprisonment. He appealed against both his conviction and sentence.

The appeal came before me on 13 February 1997. At the end of the hearing, I dismissed it. I now give my reasons.

The prosecution`s case

The prosecution`s case was this: there was a plan between one Aw Boon Hui (Aw) and one Lee Peng Wah, also known as Pui Kia, to steal a container of 640 computers from Pasir Panjang Distripark (PPD). Pui Kia subsequently approached Poon Peng Huat (Poon) to buy the stolen computers. Poon in turn approached one James Lam Chun Meng (James) and one Peter Yeo Hwee Hua (Peter) to arrange for the disposal of the computers.

Poon, however, did not have sufficient funds to purchase all the computers. Thus, he approached the appellant who loaned him a total of $80,000 to make the purchase. The case against the appellant was that he knew all along that the money was meant to buy stolen computers. In fact, he put up the money jointly with Poon, and he later received a share of the profit.

In order to prove the appellant`s guilty knowledge and involvement, the following evidence was adduced. Aw testified that he met Pui Kia some time in July 1993 to discuss about the theft of a container loaded with computers. Aw was then a driver of containers at PPD, and his role was to truck the container out of PPD. For his efforts, Pui Kia agreed to pay Aw $50,000.

On the day of the theft, the appellant picked Poon up from the latter`s shop in Ang Mo Kio, and they went together to the World Trade Centre (WTC) in the appellant`s blue Audi car. The $70,000 cash loan from the appellant, together with Poon`s own money, was kept in the glove compartment.

When they arrived at the WTC, the appellant and Poon went together to the cafeteria located on the second floor. There they met James and Peter. The prosecution contended that the appellant was present throughout the meeting when Poon asked Peter and James to look for a warehouse and discussed about the sale of the computers. A warehouse address, together with a drawing of the route to it, was then handed to Poon by either Peter or James.

After the meeting at the cafeteria, the appellant and Poon proceeded downstairs to the WTC car park to wait for Aw and Pui Kia. Aw wanted to see the cash first before he stole the container, and so Pui Kia had to drive him to the arranged location to view it. The prosecution contended that the appellant showed Aw the money upon his arrival. Thereafter, Aw and Pui Kia left together and headed towards PPD, while the appellant and Poon proceeded to Pasir Panjang hawker centre.

Pui Kia subsequently joined the appellant and Poon at the hawker centre, and they waited for Aw`s call. Aw finally contacted Pui Kia on the handphone to inform him that the container of computers had been successfully driven out of PPD. The three of them left at this point to meet Aw who had parked a trailer loaded with a container alongside a main road. When they met up, Pui Kia alighted from the appellant`s car and boarded the trailer while the appellant drove Poon to a warehouse in Clementi, with the trailer following behind. Upon arriving at the warehouse, Poon was dropped off, and the appellant left to buy cigarettes. But, as it turned out, there was no more space in the warehouse. It was decided that the stolen computers would be brought to another warehouse in Penjuru Road.

The appellant was eventually contacted and informed of the change of location, and he subsequently arrived at the Penjuru warehouse to watch the unstuffing of the computers. After the computers were unloaded, Aw and Pui Kia went into the blue Audi car. The prosecution contended that the appellant was the one who counted the cash and handed it to Pui Kia. Pui Kia, in turn, gave Aw $50,000 in $1,000 bills, and they both left the car after this. The appellant then drove Poon back to his shop in Ang Mo Kio. On their way back, Poon allegedly asked for another $10,000 from the appellant because he had miscalculated the amount. The appellant handed Poon the $10,000 as requested on the following day. Therefore, all in all, the appellant extended a sum of $80,000 to Poon.

After about one or two weeks, the appellant confirmed that he received $140,000 from Poon, even though he had loaned him only $80,000. $120,000 was in cash while the rest was in the form of a cheque. However, the appellant requested that he be paid in cash. Two days later, Poon paid the remaining $20,000 in cash to the appellant. The prosecution contended that this excess $60,000 was the appellant`s share of the profit in the criminal enterprise.

Since then, Poon, Pui Kia, Aw, James and Peter have all been convicted for their participation in the theft.

The defence

The crux of the defence was that the money handed by the appellant to Poon was a loan. The appellant did not know that it was to be used to buy stolen goods. The appellant also testified that Poon and he were good friends who helped each other out when they were in financial difficulties.

The defence was that, some time in 1993, Poon had asked the appellant for a loan of $70,000. Although three weeks before that, Poon had borrowed another $60,000 and the debt was still outstanding, the appellant loaned the $70,000 in cash without asking what it was for.

As to the appellant`s presence at the WTC and the warehouse, the appellant explained that Poon`s car had broken down on the day in question. When he delivered the money to Poon`s shop in Ang Mo Kio, Poon asked for a lift to the WTC. The appellant agreed.

Upon arrival at the WTC, Poon invited the appellant to join him at the cafeteria on the second level since he was still early for his appointment. A while later, Poon`s clients arrived and the appellant was asked by Poon to wait while he joined his clients at another table. The appellant testified that he waited and sat alone about 8.8m away from the rest. Poon later introduced his clients, namely, James and Peter, to the appellant. A short conversation ensued about the appellant`s business, but there was no mention of computers. After that, Poon asked the appellant to leave with him.

The appellant and Poon returned to their car at the WTC car park. Pui Kia and Aw arrived shortly, whereupon Poon asked the appellant for the money in the glove compartment. The appellant handed the money to Poon who proceeded to show it to Aw and Pui Kia. All this time, the appellant claimed that he was inside the car. Thereafter, Poon told the appellant that he could leave if he was not free. However, the appellant suggested going for lunch instead, and they left together for the Pasir Panjang Hawker Centre.

While they were having their meal at the hawker centre, Pui Kia appeared. Poon went over to speak to him initially. Shortly afterwards, they joined the appellant at the table. They chatted about car prices, but there was no mention of computers. Pui Kia`s handphone then rang and Poon asked the appellant if he knew the way to a warehouse in Clementi. The appellant answered in the affirmative, and Poon asked to be driven there. The appellant obliged without asking further, and Pui Kia and Poon got into his car.

The three of them were travelling along Pasir Panjang Road on their way to the Clementi warehouse when Poon asked the appellant to stop in front of a trailer parked alongside the road. Pui Kia alighted from the car and got into the trailer. At this point, the appellant claimed that he asked Poon what was inside the container. Poon told him that it was `insurance claimed cargo`. The appellant testified that he took that to mean that the seller was able to claim insurance for goods which were damaged in one way or another whilst on the way to the buyer, and these goods could therefore be sold at a lower price after claiming insurance.

As the appellant and Poon continued their journey to the Clementi warehouse, the appellant claimed that he received a call from his company to check on colour proofing. Hence, he told Poon that he had something else on and would have to leave after dropping him off at the warehouse.

Back at his company, the appellant received a telephone call on his handphone from Poon who had apparently forgotten to take out the money from the glove compartment. The appellant went to check and found the money still there, so he agreed to bring the money over to Poon after he had settled his business at his company. Poon then informed him that the location of the warehouse had been changed to...