Chua Boon Chye v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 29 June 2015
• Neutral Citation: [2015] SGCA 31
• Plaintiff Counsel: Sant Singh SC, Lee Ping and Tham Lijing (Tan Rajah & Cheah)
• Docket Number: Criminal Reference No 5 of 2014
• Date: 29 June 2015
• Hearing Date: 09 April 2015
• Subject Matter: Admissibility of evidence,Evidence
• Published date: 19 January 2017
• Citation: [2015] SGCA 31
• Defendant Counsel: Andre Jumabhoy, Cheryl Lim and Kenneth Chin (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Year: 2015

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

This criminal reference was brought by Chua Boon Chye (“the Applicant”) to refer the following question of law of public interest to this court for determination pursuant to s 397 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the Question”):

Whether the previous conviction of a third party is admissible as evidence against the accused in criminal proceedings.

The Applicant was convicted and sentenced to eight months’ imprisonment for one count of dishonestly receiving stolen property, namely, 105 metric tonnes of marine fuel oil (“MFO”), pursuant to s 411 of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”) in the District Court. The District Judge (“DJ”), in finding that the MFO was stolen, relied, inter alia, on evidence of a third party’s conviction for criminal breach of trust (“CBT”) for misappropriating MFO. The Applicant’s appeal against both conviction and sentence was dismissed by a High Court Judge (“the Judge”), who held that the DJ was right in admitting the evidence. The Applicant later filed a criminal motion to refer three questions of law of public interest purportedly arising from the Judge’s decision to this court. This court denied leave in respect of two questions, but granted leave to refer the Question. In this criminal reference, the Applicant contends that the third party’s conviction for CBT should not be admitted into evidence as proof that the MFO that he received was in fact stolen.

Background facts

The background facts relating to the Applicant’s charge have been set out in the decisions of the District Court and the High Court (see Public Prosecutor v Chua Boon Chye [2013] SGDC 441 (“Chua Boon Chye (DC)”) and Chua Boon Chye v Public Prosecutor [2014] SGHC 135 (“Chua Boon Chye (HC)”), respectively). We do not propose to repeat them in their entirety, save to highlight the facts that are germane to this criminal reference.

Shankar s/o Balasubramaniam (“Shankar”) (the Prosecution’s first witness) was the operations executive of an MFO terminal operated by Chevron Singapore Pte Ltd (“Chevron”) located at No 210 Jalan Buroh (“the Terminal”). As part of his role, which included taking on the duty of shift superintendent, Shankar would track the movement of MFO at the Terminal. There were shore tanks in the Terminal. In the course of operations, minor discrepancies in shore tank readings would arise, which led to “gains” and “losses” in MFO. When MFO was pumped into vessels, for instance, there may be a variance between the reading on the shore tank and that on the vessel. The tolerance level for this variance was 0.5%. Any amount constituting gains (within this 0.5%) was retained at the Terminal. Shankar, as shift superintendent, was the custodian of these discrepancies. At the end of each shift, he had to record them in a log book and report to his superior, Tan Poo Lee.

Shankar conspired with two petroleum surveyors, Remy bin Khaizan (“Remy”) (the Prosecution’s second witness) and Viknasvaran s/o Kumarasamy (“Viknasvaran”) (the Prosecution’s third witness), to siphon off and sell the gains of the MFO at the Terminal. As petroleum surveyors, Remy and Viknasvaran had to take measurements of the fuel in a barge before and after loading. In siphoning off MFO, their roles were as follows: Shankar identified the gains of MFO which had not been reported to Chevron. Shankar then informed Remy both of the quantity of the gains available, and of the vessels that were arriving at the terminal for loading. Remy then negotiated with the vessel’s owner or representative (such as the Applicant) for the sale of the illicit fuel. To conceal their wrongful acts, either Remy or Viknasvaran boarded the vessels and took measurements of the MFO before and after loading. The figures were adjusted such that the loading of the excess MFO would not be detected (for instance, by inflating the pre-loading figure). When the loading was completed, Shankar prepared the Certificate of Quantity – which also excluded the quantity of the excess fuel. The payments for the excess MFO were then made in Singapore dollars, in cash, and without any receipt.

Shankar, Remy and Viknasvaran carried out their plan on 29 October 2009. Shankar was on duty as shift superintendent on that day. He identified 105 metric tonnes of MFO (gains) to sell and informed Remy accordingly. He also informed Remy that the MV Milos, a barge operated by Aegean Breeze Shipping Pte Ltd (“ABS”), was due at the Terminal to load 2,500 metric tonnes of MFO. Remy approached a broker, Hussein Ahmad bin Abdul Satar (“Hussein”) (the Prosecution’s fifth witness), to sell this excess MFO. The Applicant understood that the MFO came from the “black market” (according to his statement given to the Corrupt Practices Investigation Bureau dated 15 May 2008). They agreed on a price of $180 per metric tonne for the 105 metric tonnes (totalling $18,900). The Applicant then contacted a bunker clerk on board the MV Milos to expect an additional 105 metric tonnes of MFO.

When the MV Milos berthed at the Terminal on 29 October 2007, the 105 metric tonnes of MFO were loaded onto the barge. Subsequently, the Applicant met Hussein at a hawker centre to make a cash payment of $18,900 from his company’s (Aegean Bunkering (Singapore) Pte Ltd (“AB”)) petty cash account.

The Applicant was the general manager and director of AB. AB and ABS were related companies. AB was a wholly owned subsidiary of Aegean Marine Petroleum SA (“AM”), incorporated in Liberia. AM was in turn wholly owned by Aegean Marine Petroleum Network Inc (“AMPN”) which was incorporated in New York. AB was in the business of purchasing MFO. Once AB made the purchase, it would refer the operational aspects of delivery to ABS. ABS was wholly owned by Aegean Shipholdings Inc, a company registered in the Marshall Islands, which was in turn wholly owned by AMPN. ABS and Aegan Shipping Inc were part of the “operational arm” of AMPN, whereas AB and AM were part of the “trading arm”. For ease of reference, we illustrate this with the following diagram:

The Applicant was arrested later and claimed trial in the District Court to the following charge (“the Charge”):

You are charged that you, on or about 29 October 2007, in Singapore, did dishonestly receive stolen property, namely, approximately 105 metric tonnes of fuel oil, valued at approximately S$69,106.70 (Sixty Nine Thousand One Hundred and Six Dollars and Seventy Cents), belonging to Chevron Singapore Pte Ltd, whilst having reason to believe the same to be stolen property, and you have thereby committed an offence punishable under section 411 of the Penal Code, Chapter 224 (1985 Rev Ed).

For ease of reference, we set out the relevant portion of s 411 of the PC, which reads as follows:

Dishonestly receiving stolen property

411.—(1) Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the property to be stolen property, shall be punished with imprisonment for a term which may extend to 5 years, or with fine, or with both.

…

The phrase “stolen property” in s 411 of the PC is in turn defined in s 410 of the PC, which reads as follows:

Stolen property

410.—(1) Property the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated, or in respect of which criminal breach of trust or cheating has been committed, is designated as “stolen property”, whether the transfer has been made or the misappropriation or breach of trust or cheating has been committed within or without Singapore. But if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.

(2) The expression “stolen property” includes any property into or for which stolen property has been converted or exchanged and anything acquired by such conversion or exchange, whether immediately or otherwise.

After a 29 day trial, the DJ convicted the Applicant of the charge on 13 November 2013. The DJ accepted the Prosecution’s case, namely, that the MFO stated in the Charge was in fact stolen property, the Applicant had reason to believe it was stolen, and that he had indeed received it. The DJ, in finding that the MFO stated in the Charge was stolen, relied on two grounds. First, Shankar’s oral testimony to the effect that he conspired with Remy and Viknasvaran to siphon off the MFO stated in the Charge. Secondly, Shankar’s earlier charges for CBT for siphoning oil to various barges (including the MV Milos). Shankar pleaded guilty, but the charge involving MV Milos was in fact one that was taken into consideration for the purpose of sentencing (see Chua Boon Chye (DC) at [21]).

The Applicant then appealed against both the conviction and sentence imposed by the DJ vide Magistrate’s Appeal No 294 of 2013 in the High Court. In the Magistrate’s Appeal, the Applicant argued that the DJ had erred in finding that the MFO in the Charge was “stolen property”. The Prosecution contended that the MFO in the Charge was “stolen property”, and reiterated the same two reasons given by the DJ in making this finding as outlined in the preceding paragraph.

The Judge held, inter alia, that the DJ was right in admitting that evidence and agreed that the MFO in the Charge was “stolen property” (see Chua Boon Chye (HC) at [22]). Accordingly, the Judge rejected the Applicant’s arguments and dismissed the Applicant’s appeal on 15 July 2014.

The Applicant then filed Criminal Motion No 59 of 2014 for leave to refer three questions of law of public interest purportedly arising from the High Court decision to this court. On 3 October 2014, this court granted leave to refer the Question as stated at [1] of this judgment.

Arguments raised in the present criminal...