Criminal Law
| Author | TAN Ee Kuan MA (Cantab), LLM (Harvard University); Advocate and Solicitor (Singapore); Assistant Registrar, Supreme Court of Singapore. Sarah SIAW BA (Jurisprudence) (Oxon); Advocate and Solicitor (Singapore); Deputy Public Prosecutor and State Counsel, Crime Division, Attorney-General's Chambers. LU Yiwei BA (Cantab), LLM candidate (Columbia University); Advocate and Solicitor (Singapore). |
| Publication year | 2021 |
| Citation | (2021) 22 SAL Ann Rev 404 |
| Date | 01 December 2021 |
14.1 This review is in three parts. These will examine cases involving offences under the Penal Code,2 the Misuse of Drugs Act3 (“MDA”), and other statutes respectively.
14.2 In Leck Kim Koon v Public Prosecutor,4 the General Division of the High Court discussed how the elements of the offence of cheating apply where the victim is a corporate body.
14.3 The appellant (“Leck”) was a director and majority shareholder of a company (“Intraluck”) in the business of importing and exporting aluminium and other products. Intraluck had trade financing credit facilities with banks, under which it could obtain financing upon submitting an application form together with transport documents.
14.4 In 2015, Intraluck submitted six applications for invoice financing to various banks, which attached either a bill of lading or an arrival notice referencing the bill of lading. The bill of lading was the subject of an earlier import transaction, for which Intraluck had already received invoice financing. The banks approved the applications and disbursed moneys to the suppliers under the relevant invoices.
14.5 Leck was charged with six counts of cheating and dishonestly inducing delivery of property under s 420 of the Penal Code. He claimed trial to the charges. The District Court convicted Leck on all six charges and sentenced him to 36 months' imprisonment. Leck appealed against his conviction and sentence.
14.6 On appeal, Vincent Hoong J discussed how the elements of the offence of cheating apply where the victim is a corporate body. Hoong J first affirmed the elements of the offence under s 420 of the Penal Code set out in Gunasegeran s/o Pavadaisamy v Public Prosecutor,5 namely:6
(a) Deception must have been practiced on the victim;
(b) There was inducement such that the victim delivered any property to any person; and
(c) There must be a dishonest or fraudulent intention on the part of the deceiving person to induce the victim to deliver the property.
14.7 Regarding the first element (deception of the victim), Hoong J held as follows:
(a) A corporate entity could be the victim of cheating even if no human agent was deceived: s 11 of the Penal Code defines the word “person” (used in the definition of “cheating” in s 415 of the Penal Code) to include “any company or association or body of persons, whether incorporated or not”. Hoong J added that his view was reinforced by Explanation 4 to s 415 of the Penal Code (added to the Penal Code in 2019, after the offences in question were committed). Explanation 4 provides that a corporate body can be deceived even though none of its officers, employees or agents was personally deceived.7
(b) In the context of deceiving a corporate body, where no particular human agent of the corporate body was deceived, to prove that the corporate body had “believed” the deception, the Prosecution had to show that the offender's acts were such as
to induce an action on the part of the corporate body, either as part of its internal protocol or management processes, and the corporate body would not have so acted if the “representation” was not made.8
14.8 Regarding the second element (inducement), Hoong J endorsed the holding in Seaward III Frederick Oliver v Public Prosecutor9 that it was not necessary for the deception to be the sole, operative reason for the action, so long as it played some part in inducing the action.10
14.9 On the facts, the banks had been deceived into believing that the moneys to be disbursed under the relevant invoices related to genuine trade transactions, which did not in fact exist.11 The deception had induced the banks to disburse the moneys.12 Further, the appellant had acted dishonestly, since he knew that the banks required copies of transport documents relating to genuine trade transactions to disburse funds under the facilities, and had submitted documents which were false representations of such trade transactions to the banks.13 Thus, all the elements of the offence of cheating and dishonestly inducing delivery of property were made out. Hoong J accordingly dismissed the appeal against conviction, and also dismissed the appeal against sentence.
14.10 In Public Prosecutor v Chong Chee Boon Kenneth,14 the General Division of the High Court considered, among other things, the contours of the defence under s 87 of the Penal Code.
14.11 The proceedings arose from the death of a National Service serviceman (“Cpl Kok”) during a ragging activity. A group of fellow servicemen had carried Cpl Kok to a 12-metre-deep pump well and pressured him to enter the well despite his pleas to be spared. One of the servicemen suddenly pushed Cpl Kok from behind into the pump well. Cpl Kok, who was not a swimmer, drowned as a result.
14.12 Two of Cpl Kok's commanding officers (“Lta Chong” and “SWO Nazhan”) were charged in their roles as the commander and
14.13 One of SWO Nazhan's arguments on appeal was that Cpl Kok had voluntarily placed himself in the potentially dangerous situation and consented to the activity, and that the harm occasioned to him accordingly fell under the exception in s 87 of the Penal Code.
14.14 See Kee Oon J referred to the Court of Appeal's remarks in Pram Nair v Public Prosecutor15 regarding the concept of consent in the context of sexual offences. In See J's view, the essential elements of valid consent were fundamentally similar in the context of both sexual and non-sexual offences. With the exception of the offence of murder (for which consent could only provide a partial defence under Exception 5 to s 300 of the Penal Code), the following threshold requirements should minimally be satisfied in order for consent to operate as a complete defence:16
(a) There must be voluntary participation on the part of the “victim” after he/she had been able to appreciate the significance and the moral quality of the act proposed to be done.
(b) There must be some element of agreement as to what was proposed to be done to the “victim”. Such an agreement could be implied or express, and its existence was a question of fact. There was no need for any conventional contractual analysis. What was important was that the “victim” must know the nature of the act proposed to be done and the reasonably foreseeable consequences of the act.
(c) There must not be any fact which called into question whether consent was given voluntarily. The presence of any of the vitiating factors in s 90 of the Penal Code would be prima facie evidence of a lack of voluntariness. Such factors included the giving of consent under fear of injury (s 90(a)(i)), where “injury” encompassed any harm illegally caused to any person in body, mind, reputation or property.
14.15 Applying these principles to the facts, See J found that the general defence of consent did not apply for two reasons. First, Cpl Kok had not been allowed to exercise his own free will. Cpl Kok was constantly surrounded by up to as many as eight to ten other servicemen, including superior officers, who were intent on making sure that he entered the pump well and harassed and pressured him to comply. Cpl Kok repeatedly pleaded with his superior officers but was ignored. Even if Cpl Kok's consent was not completely vitiated, he would at least have been acting under overwhelming duress. He was placed squarely in a situation of helpless resignation in the face of inevitable compulsion, which could not be deemed consent.17
14.16 Second, pursuant to s 90(a) of the Penal Code, the defence of consent was not available if the accused person knew or ought to have known that any purported consent was obtained due to fear of injury. This was an objective inquiry. On the facts, Cpl Kok never expressly or impliedly consented to entering the pump well. SWO Nazhan and Lta Chong knew or ought to have known that, even if Cpl Kok had entered the pump well on his own, there was no valid consent on his part to speak of in the circumstances.18
14.17 See J thus dismissed SWO Nazhan's appeal. He further allowed the Prosecution's appeals, convicted both SWO Nazhan and Lta Chong on the charges under s 338(a) of the Penal Code as originally framed, and enhanced their sentences to ten and 11 months' imprisonment respectively.
14.18 In Public Prosecutor v Chua Wen Hao,19 the General Division of the High Court considered, among other things, the elements of s 182 of the Penal Code, a provision criminalising giving false information to a public servant with intent to cause the public servant to do something which he ought not to do or to omit something which he ought to do if the true state of facts were known to him.
14.19 In the trial court, the accused person pleaded guilty to a charge under s 182 for giving false information to a police officer and was sentenced to a short detention order (“SDO”). The facts were as follows. The accused person and a lady, together with a male subject (“B1”), entered a hotel room. Angered as a result of a dispute with a
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