Edmund Nathan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 30 August 1997
• Neutral Citation: [1997] SGHC 225
• Docket Number: Magistrate's Appeal No 29 of 1997
• Date: 30 August 1997
• Year: 1997
• Published date: 19 September 2003
• Plaintiff Counsel: Sant Singh and Gordon Oh (Wee Tay & Lim)
• Citation: [1997] SGHC 225
• Defendant Counsel: Ng Cheng Tiam (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Whether element of dishonesty present,ss 23, 24, 34, 415, 420 & 511 Penal Code (Cap 224),Whether appellant intended to deceive bank,Whether elements of charge proved,Criminal Law,Cheating,Offences,Property,Attempted cheating

Introduction

The appellant was convicted together with one Alloisus Bernard Fernandez on the following charge:

You, B-1 - Alloisus Bernard Fernandez

B-2 - Edmund Nathan

are charged that you, between 1 June 1991 and 26 June 1991, in Singapore, and in furtherance of the common intention of you both, attempted to cheat the United Overseas Bank Ltd, Singapore, and in such attempt did deceive the said bank into believing that the intended purchase price for the property at 363A Upper Paya Lebar Road was S$190,000 when you knew that the intended purchase price was S$135,000, and by such deception, you dishonestly atttempted to induce the said United Overseas Bank to deliver property to some persons, to wit; to approve a loan of S$110,000 and disburse the said sum to Alloisus Bernard Fernandez and Margaret Angela Fernandez, and you have thereby committed an offence punishable under s 420 read with ss 34 and 511 of the Penal Code (Cap 224).

Alloisus Bernard Fernandez (Fernandez) was sentenced to one day`s imprisonment and fined $3,000, in default 30 days` imprisonment. He did not appeal. The appellant was sentenced to one day`s imprisonment and was fined $10,000, in default 100 days` imprisonment. He appealed against his conviction and sentence. I dismissed the appeal on 12 August 1997 and now give my reasons.

The undisputed facts

The following facts were not in dispute. The appellant was an advocate and solicitor who was retained by Fernandez for the sale and purchase of an apartment at 363A Upper Paya Lebar Road (the property) in mid-1991. Fernandez was the purchaser. The vendors were Priscelia Ann Jansen and Edmund Joseph Jansen (the vendors); they are siblings. The appellant drafted a sale and purchase agreement (exh P2) for the property which described the `sale price` as S$190,000. The appellant also drafted a second document (exh P3), which was a side letter from the vendors to Fernandez. It stated, inter alia:

We refer to the sale and purchase agreement entered between you and us wherein we have agreed to sell [the property] for a sum of $190,000 as you would require a loan for the said amount and as we agree to sell to you the said property for a sum of $135,000, we confirm that on completion of the said sale, we would be paid a sum of $135,000.

We also confirm that although we have stated in the sale and purchase agreement we have received a sum of 10 per cent deposit of the said sum of $190,000, we mutually confirm that this is not correct and that on completion, we would be paid the full sum of $135,000 only.

Exhibits P2 and P3 were signed by the vendors at the appellant`s office on 31 May 1997. Exhibit P2 was signed by Fernandez at the appellant`s office on 1 June 1997. Both exhs P2 and P3 were witnessed by the appellant.

Fernandez needed a bank loan for the purchase of the property, and was referred by the appellant to a Joseph Han (Han), who was a branch manager of United Overseas Bank Limited (the bank). Han filled up some particulars of Fernandez`s loan request on the bank`s standard form, titled `Application for Housing Loan` (exh P7); this was signed by Fernandez and dated 18 June 1991. According to the loan particulars written in exh P7, the amount required by Fernandez for the loan as $110,000, the property was to be mortgaged to the bank, and the purchase price of the property was $190,000.

Han then completed another form for internal use within the bank, titled `Application for Accommodation` (exh P6), which was sent to his superior for approval of the loan. In exh P6, Han again wrote that the loan request was for $110,000 and the purchase price of the property was $190,000. In addition to the loan moneys, a sum of $28,000 was to be paid in cash for the purchase of the property, together with a sum of $60,000 from the Central Provident Fund (CPF). On 26 June 1991, a vice-president of the bank, Adam Lim, approved the loan application by signing exh P6 (hence the date `26 June 1991` in the first sentence of the charge). The bank then sent Fernandez a letter of offer dated 28 June 1991 informing him that his loan application was approved; the offer was made to Fernandez and his wife jointly. The bank instructed the appellant to act for them as well as the purchaser. The appellant was also acting as solicitor for the vendors.

Fernandez was, however, unable to complete the purchase of the property. The bank`s letter of offer was expressed to be subject to the CPF Board approving the release of $60,000 and monthly withdrawals of $480 to finance the property`s purchase. Fernandez could not comply with this condition; he owed the CPF Board $13,000 after the earlier sale (also in 1991) of a HUDC flat owned by him and his brother, and the CPF Board would not allow funds to be released from his CPF account until this $13,000 had been repaid. As at the date of this appeal, Fernandez had yet to repay the CPF Board this amount.

Eventually, in March 1992, the sale was aborted by the vendors. In April 1992, the appellant wrote to the bank stating that they should treat the mortgage transaction as aborted. The loan was accordingly never disbursed by the bank. In that same month, Fernandez instructed another firm of solicitors to act for him in enforcing the sale and purchase agreement against the vendors. The appellant agreed to give evidence on the vendors` behalf in Fernandez`s suit against them.

When Fernandez`s suit came on for trial in the High Court in 1994, the judge informed the parties that there was an issue of illegality and the case would be referred to the police. The Law Society would also be notified of the appellant`s conduct. Fernandez then discontinued the action against the vendors.

Thereafter, Fernandez instructed his solicitors to commence an action against the appellant for negligence. He also complained to the Law Society about the appellant`s conduct of the sale transaction. The appellant was eventually fined $3,000 by the Law Society for preparing exhs P2 and P3.

The prosecution case

The prosecution alleged that the appellant had a common intention with Fernandez to induce the bank to grant Fernandez a larger loan, by deceiving the bank with an inflated purchase price. Fernandez needed a large loan as he was short of funds. The actual purchase price for the property was $135,000, which was below the market value of the property at the time. The appellant and Fernandez prepared in concert a false sale and purchase agreement, exh P2, where the purchase price was stated as $190,000, and so deceived the bank into thinking the property was being sold for $190,000. They were charged with attempt to cheat as the loan, although approved by the bank, was never actually disbursed.

Han testified that he always thought that the price was $190,000 and he had not known of the actual price of $135,000. He said that the bank`s guidelines for housing loans in 1991 were such that a loan would be granted for 90% (including CPF) of the purchase price or valuation, whichever was lower. In Fernandez`s case, the relevant figure was the purchase price of $190,000. Han did not have authority to approve loans of this magnitude; he would recommend to his management whether a loan should be granted and management would decide whether to approve the loan.

However, Han`s evidence that he thought the price was $190,000 was contradicted by a fax he had sent on 12 April 1995 to the then President of the Law Society, Michael Khoo. The latter had been appointed by an inquiry committee to investigate the appellant`s conduct in the sale transaction, and he had asked Han over the telephone to confirm if a written explanation given to him by the appellant was accurate. The appellant`s written explanation stated, inter alia:

I [the appellant] informed Mr Han that I had a client who was purchasing a property and would like to obtain a bank loan to finance the purchase. I told him specifically that there was a sale and purchase agreement which reflected the market price of $190,000 but my client was actually buying the property at a much lesser price.

Han had told Michael Khoo over the telephone that the appellant`s explanation sounded familiar to him. Later in the day, Han faxed to Michael Khoo a copy of this page of the appellant`s written explanation. Han had added brackets around the words quoted above and had also written,

Yes, confirmed spoken over phone. Also, mentioned that purchasing at below market value as prospect was buying from a close relative.

When Han was cross-examined, he explained what he meant by this fax was that the appellant had told him that $190,000 was below the market price. He also said he was under pressure to reply at the time and he was not sure of Michael Khoo`s identity when he called.

The vendors testified that the property was to be sold at $135,000. The property had been transferred to them by their mother some years ago and they regarded her as the `moral` owner. She had instructed them to sell it to Fernandez at below market value as he was the son of a relative; she knew that he was having financial difficulties and she wanted him and his family to have a roof over their heads. Exhibits P2 and P3 had been prepared by the appellant and not at their request. When they asked the appellant what exh P2 was for, the appellant told them it was for `loan purposes`.

Theresa Jansen, the mother of the vendors, passed away before the case was tried. However, she had made a statement to the police on 25 January 1995. In the statement, she said that the sale price was $135,000 and she had so informed the appellant. The appellant had asked her to send the vendors to sign the sale and purchase agreement. At no time had there had been any mention of a price of $190,000. Another son of Theresa Jansen, Allen Jeffrey Jansen, testified that he had been present when the statement was recorded and confirmed that its contents were consistent with...