Chua Kian Kok v Public Prosecutor

• Judge: Yong Pung How CJ
• Judgment Date: 22 March 1999
• Neutral Citation: [1999] SGHC 65
• Citation: [1999] SGHC 65
• Defendant Counsel: Wong Keen Onn (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: David Rasif (David Rasif & Partners)
• Date: 22 March 1999
• Docket Number: Magistrate's Appeal No 108 of 1998
• Court: High Court (Singapore)
• Subject Matter: Mens rea and actus reus,Cheating,Scope of offence,Property,Abetment,s 511 Penal Code (Cap 224),Offences,ss 415, 417 & 420 Penal Code (Cap 224),ss 107 (b) & 109 Penal Code (Cap 224),Defence of impossibility,Scope and validity of defence,Criminal Law,Whether necessary for commission of actual offence,Whether accessory should be charged differently,Dishonest inducement of delivery of property,Attempt

Judgment:

YONG PUNG HOW CJ

Introduction

1.The appellant was convicted on 13 charges of abetting an attempted cheating and was sentenced to nine months` imprisonment.

2. The charge

DAC 17055/97

You, Chua Kian Kok (M/37 years) NRIC No S 1351036-I are charged that you sometime in the month of February 1996 in Singapore did engage with one Guok Sing King in a conspiracy to do a certain thing, namely, to cheat, and in pursuance of the conspiracy and in order to the doing of that thing, an act took place on or about 1 February 1996 at TT Hardware Supplies located at No 2, Rowell Road, Singapore, to wit, you made out a false delivery order number 49930 for eight pieces of SPC KF 22328 bearing valued at $4,160 and two pieces of SKF 22324 bearing valued at $960 with GST amounting to $153.60 cents and addressed it to Nordberg (S) Pte Ltd which you presented to the warehouse supervisor one Guok Sing King for him to append his signature to acknowledge receipt of the said property when you knew it was false and thereafter, you sent an invoice bearing number 34587 for the above mentioned items to Nordberg (S) Pte Ltd in an attempt to deceive Nordberg (S) Pte Ltd into believing that the said items were received by their warehouse supervisor Guok Sing King at No 8 Gul Drive, Singapore, which you both knew was false, and by such manner of deception, you dishonestly attempted to induce Nordberg (S) Pte Ltd to release payment for the said items to you and you have thereby abetted an offence of attempted cheating, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under s 511 read with s 109 and s 420 of the Penal Code (Cap 224).

The other 12 charges were similar except for the dates of the offences, the delivery orders and the amounts involved.

3. The facts

Before going into the facts of the appeal proper, an account of the purchasing and accounting procedures of Nordberg (S) Pte Ltd (`Nordberg`) and TT Hardware Supplies (`TT`) will first be summarised. As a backdrop to the facts, this will allow a better understanding of the significance of the actions of the parties concerned.

4.When Nordberg decides to purchase something, the first step in the process is to raise a purchase order (`PO`). This is done by the purchase manager, one Soo Kook Sooi (`Soo`). The PO is sent to the supplier either by fax or mail. Sometimes, a call will be made to the supplier first to order the items and the PO is only sent after the price has been agreed. When suppliers deliver goods to Nordberg, a delivery note (or delivery order) is signed by one Allen Guok Sing King (`Allen`), who is the warehouse supervisor. Sometimes, in the interest of expediency, Allen will go to the supplier`s premises and collect the goods. In these cases, the delivery note is signed at the supplier`s premises. After receiving the goods, Allen will raise a Good Received Note (GRN). When the supplier sends his invoice over to Nordberg for payment, Soo will check the invoice against the GRN. If the invoice is in order, Nordberg will make payment to the supplier.

5.Even to an untrained logistician, the above system is a sound one. The PO represents Nordberg telling the supplier: `I want to buy X goods`. The delivery note represents Nordberg acknowledging to the supplier that X goods have been received. The issuance of the GRN tells the accounting department that X goods have been received by the warehouse. The invoice from the supplier represents a demand for payment for the provision of X goods. Before paying out money to the supplier, the purchasing manager checks the GRN against the invoice and the PO to ensure that they are paying for what was originally ordered and received.

6.TT`s supply and accounting procedures are as follows. When a purchaser wants to purchase goods from TT, he will normally call up first. If TT is able to supply the goods required, and he is satisfied with TT`s price quote, a purchase order is sent over. TT will then deliver the goods to the purchaser. Upon receipt of the goods, the TT delivery men will collect a signed delivery note from the purchaser and return to TT with it. With this delivery note, TT raises an invoice and sends it over to the purchaser for payment. If the parties in this case had complied with these procedures, all would have been well. However, their failure to do so denied them the protection provided by the system.

7.The facts may now be set out. The appellant is a partner of TT. In May 1996, the Nordberg accountant discovered discrepancies re-occurring in the daily accounting procedures. Nordberg was being billed by TT for certain items which had GRN numbers that were not in the system. In other words, the bills were for goods that Nordberg had not received. As stated above, Allen was the person in charge of generating these GRN numbers. Attempts to elicit an explanation from him were unsuccessful. Accordingly, a police report was lodged.

8. The prosecution case

The prosecution case was that the appellant had abetted Allen by conspiracy in an attempt to cheat Nordberg by deceiving it to pay moneys to TT under the mistaken notion that it was for goods genuinely ordered and received by Nordberg. The prosecution`s main witness was Allen. He testified that he had approached the appellant and told him that he could buy goods, which Nordberg would find useful, at a very low price. He would sell them to the appellant at a low price and then pretend to take delivery of them on behalf of Nordberg by signing the delivery note. The appellant would then generate an invoice to Nordberg based on this delivery note. In accordance with the arrangement, whenever Allen received the materials, he would go down to the appellant`s office where he would sign the delivery note indicating that Nordberg had accepted delivery of the materials. This occurred many times between February 1996 and April 1996. The appellant would then issue him a cheque for approximately half the amount on the delivery note. The materials never passed through TT`s possession and were often never received into Nordberg`s warehouse as well.

9.Allen also testified further that, when Nordberg discovered the discrepancies in the accounts, they had contacted the appellant and asked him not to take any more orders from him (Allen). In response to this, the appellant called him and asked him, `What is the problem? What is happening?`

10. The defence at the trial

The defence was simply that the appellant was never a party to any conspiracy to cheat Nordberg. While he was approached by Allen to buy cheap materials from him to sell to Nordberg, he did not agree to do so. He instead remained silent throughout and ignored him.

11.The appellant also testified that Allen had placed orders for certain materials by phone in early February 1996. He then came down to TT`s office to sign the delivery note. However, he did not take delivery. Instead, he told the appellant to hold onto the goods first as he was waiting for the vessel (which would take the materials to Nordberg`s project site) to arrive first. The appellant stated that he had no reason to believe that Allen was not making an authorised purchase on behalf Nordberg. He knew that Allen had been promoted to warehouse supervisor. As such, he thought that Allen had the authority to make purchases on behalf of Nordberg. This happened a number of times from February until April 1996. The appellant said that it was not unusual for his customers to ask for delivery to be put on hold even though they had already signed the delivery note. The appellant then proceeded to issue invoices to Nordberg based on these delivery notes signed by Allen. These invoices did not reflect the PO numbers as neither Allen nor any other representative from Nordberg had given him any. The court below raised the question as to how an invoice could be issued without the PO number being recorded. The appellant answered that it was not unusual to issue invoices in such a manner. The defence submitted previous invoices from TT to Nordberg that also did not reflect the PO numbers. Again, apparently it was also not unusual for TT to bill customers before the goods had been delivered.

12.The trial court queried the appellant as to how he could allow Allen to sign a delivery note when they did not have any goods to deliver. There were never any materials in TT`s possession, yet at the same time the signed delivery notes indicated that goods had been delivered. The appellant explained that the materials ordered by Allen were common items which could be obtained from TT`s suppliers at anytime.

13.As to some cheques which he had issued in favour of Allen, the appellant maintained that they had been personal loans as Allen had been in financial difficulty and he had taken pity on him. During cross-examination, the DPP asked him why he would lend Allen a sum amounting to $12,855 as he did not know him socially. The appellant`s answer was that `I`m of a very soft nature. I had lent money to quite a number of my friends. Allen is not the only one.` The appellant also stated at another point that he was willing to lend money to Allen as Allen would bring business to him in return (ie by buying things from him on behalf of Nordberg). Another question raised by the DPP was about the length of postponement of delivery. At the time of the trial, some goods still had not been delivered. This meant that delivery had been put on hold for a year. The appellant`s answer was that `Up to now Nordberg has not asked for delivery`.

14. The decision below

The trial judge was satisfied that there was a collaboration between the appellant and Allen to deceive Nordberg into thinking that goods had been received in the Nordberg warehouse by putting up false delivery notes signed by Allen. In this way, they could induce Nordberg to make payment for the fictitious sale and delivery of the goods. She...