Chua Boon Chye v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 15 July 2014
• Neutral Citation: [2014] SGHC 135
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 294 of 2013
• Year: 2014
• Published date: 12 June 2015
• Hearing Date: 30 May 2014
• Plaintiff Counsel: Sant Singh SC and Lee Ping (Tan Rajah & Cheah)
• Defendant Counsel: Andre Jumabhoy, Ilona Tan and Cheryl Lim (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Offences,Property,Receiving stolen property
• Citation: [2014] SGHC 135

Choo Han Teck J:

This was an appeal against the decision of the District Judge (see PP v Chua Boon Chye [2013] SGDC 441 (“Chua”)). The appellant was convicted on 13 November 2013 on a charge of dishonestly receiving stolen property, namely, 105 metric tonnes of marine fuel oil, on 29 October 2007, pursuant to s 411 of the Penal Code (Cap 224, 1985 Rev Ed). The fuel was valued at S$69,106.70. On 19 November 2012, the appellant claimed trial to the charge. He was sentenced on 22 November 2013 to 8 months’ imprisonment. The appellant appealed against both the conviction and sentence.

The appellant made 8 arguments in his appeal against conviction, namely: the charge had not been made out at the close of the prosecution’s case; three witnesses were not called by the prosecution; his statement to the Corrupt Practices Investigation Bureau (“CPIB”) recorded on 15 May 2008 was wrongly admitted into evidence; the evidence of the prosecution’s fifth witness, Hussein Ahmad bin Abdul Satar (“Hussein”) should not have been taken into account; the fact that the fuel in the charge was off-spec fuel was not appreciated; there were contradictions in the evidence of critical prosecution witnesses; adverse inferences should not have been drawn against him; and the organisational structure of the Aegean group of companies was relevant but not appreciated. He also submitted that the sentence of 8 months was manifestly excessive. I will first set out the background facts of the case briefly, before considering each argument. There are three aspects of the background facts that are important: the appellant’s role, the operations at the terminal, and the nature of the fuel.

Background facts

First, the appellant’s role. The appellant was the director and general manager of Aegean Bunkering (Singapore) Pte Ltd (“AB”). AB was a wholly owned subsidiary of Aegean Marine Petroleum SA (“AM”), incorporated in Liberia. The directors of AM were Greek nationals. 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 marine fuel oil (“MFO”). Once AB makes the purchase, according to the appellant, it would refer the operational aspects of delivery to a related company, Aegean Breeze Shipping Pte Ltd (“ABS”). Ioannis Sgouras (“Ioannis”), a defence witness, was the director of ABS. ABS was wholly owned by Aegean Shipholdings Inc, which was in turn wholly owned by AMPN. According to the appellant, ABS was part of the “operational arm” of AMPN, whereas AB and AM were part of the “trading arm”.

Second, the operations at the terminal. Shanker s/o Balasubramaniam (“Shanker”) was the Operations Executive at the Chevron Singapore Pte Ltd Terminal, a facility at No 210 Jalan Buroh (“the Terminal”). As part of his role, which included taking on the duty of shift superintendent, he would track the movement of fuel at the Terminal. The Terminal had approximately 45 tanks which stored different grades of fuel, and some of these tanks were leased to companies such as Marubeni International Petroleum (S) Pte Ltd (“Marubeni”) and Petrobras Singapore Pte Ltd (“Petrobras”). In the course of operations, minor discrepancies in tank readings could arise, which lead to “gains” and “losses” in fuel. When fuel is pumped into vessels, for instance, there may be a variance between the reading on the shore tank and the reading on the vessel. The tolerance level for this variance is 0.5%. Any amount constituting gains (within this 0.5%) is retained at the Terminal. Shanker, 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 (the prosecution’s eighth witness).

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

They carried out their plan between 28 and 29 October 2007, this plan was set in motion. Shanker was on duty as shift superintendent on 29 October 2007. He identified approximately 105 metric tonnes of fuel (gains) to sell and informed Remy accordingly. He also informed Remy that the MV Milos, a barge operated by ABS, was due at the Terminal to load 2500 metric tonnes of MFO of 380CST grade, purchased from Marubeni on the night of 29 October 2007. The 2500 metric tonnes, priced at US$439.40 per metric tonne, came up to US$1,100,827. Remy approached a broker, Hussein Ahmad bin Abdul Satar (the prosecution’s fifth witness) (“Hussein”), to sell the excess fuel. Hussein approached the appellant offering this excess fuel. The appellant understood that the fuel came from the “black market” (according to his statement). They agreed on a price of S$180 per metric tonne for the 105 metric tonnes.

On 29 October 2007, the MV Milos berthed at the Terminal. The 105 metric tonnes were loaded onto the barge. Subsequently, the appellant arranged to meet Hussein at a hawker centre to make payment of S$18,900 from AB’s petty cash account. Shanker, Remy, Viknasvaran and Hussein were all convicted of offences of criminal breach of trust in respect of the fuel.

The third aspect is the nature of MFO, or fuel. MFO is graded according to viscosity. The unit of viscosity used is the centistoke (“CST”). The three main types of MFO in the industry are 180CST, 380CST and 500CST. 180CST is the most expensive, whereas 500CST is the cheapest. Each of these grades of fuel has to comply with certain quality standards. Fuel that does not is generally known as off-specification, or “off-spec”. Off-spec fuel generally fetches a lower price. Off-spec fuel, however, does not refer to a specific grade of fuel. Rather, it is a residual category that encompasses any fuel that does not meet specifications contracted for. “Off”, in “off-spec”, is hence a relative concept.

Trial

The appellant’s case at trial was that none of the elements of the offence of dishonest receipt of stolen property were made out. His arguments were as follows: First, the fuel was not “stolen property”. “Stolen property” must have been unlawfully taken from someone. The prosecution thus had a burden to prove who the original owners of the property were. In this case, the prosecution had not proven that the fuel belonged to Chevron. Shanker simply pleaded guilty to the charge of criminal breach of trust because he wanted to avoid a more serious sentence. His conviction was no indication that the fuel belonged to Chevron. In fact, the excess fuel could have belonged to Marubeni, Petrobas, or the other vessels at the Terminal. Without proof of the owner, the fuel cannot be said to have been “stolen property”. Second, it was not the appellant who had purchased the fuel. The appellant was a mere conduit between Ioannis and Hussein. The appellant was never in exclusive possession or control of the fuel. After receiving the call from Hussein, the appellant spoke to Ioannis and conveyed Hussein’s offer. Ioannis told him that ABS was interested in buying the excess fuel, and he duly replied to Hussein. Subsequently, Ioannis passed him the money for the fuel, which he handed over to Hussein. Third, the appellant was not dishonest, nor did he have reason to believe that the fuel was stolen property. During the conversation with Hussein, he asked for the source of the fuel. However, Hussein did not tell him the source. This was a norm in the industry as brokers did not want to reveal their sources lest render themselves (as middlemen) obsolete. Further, the price did not seem unduly low as Hussein told the appellant it was off-spec, and not 380CST.

The District Judge accepted the prosecution’s case, namely, that the fuel was stolen property, the appellant had reason to believe it was stolen, and he had indeed received it. I now consider each of the appellant’s grounds of appeal.

Grounds of appeal against conviction (1) Had the District Judge erred in finding that the charge had been made out at the close of the prosecution’s case?

The appellant first argued that the prosecution had amended the charge several times leading up to trial. First, on 28 December 2011, the prosecution charged the appellant with dishonest receipt. In April 2012, the charge was amended to one of abetting Thet Lwin, the bunker clerk on board the MV Milos at the time of receipt. On 15 May 2012, the charge was amended to the original version – dishonest receipt. On the first day of trial, the charge was again amended. This time, the word “approximately” was used to qualify the quantity and the total price of the fuel. The appellant argued that these “prevarications” by the prosecution set the context in which I should question if the charge had been made out. The charge of dishonest...