Er Joo Nguang and Another v Public Prosecutor

JudgeYong Pung How CJ
Judgment Date17 April 2000
Neutral Citation[2000] SGHC 60
Docket NumberMagistrate's Appeal No 149 of 1999
Date17 April 2000
Published date19 September 2003
Plaintiff CounselLeong Kah Wah and Navinder Singh (Joseph Tan Jude Benny)
Citation[2000] SGHC 60
Defendant CounselBilly Low Naifah (Billy & Han),Amarjit Singh (Deputy Public Prosecutor)
CourtHigh Court (Singapore)
Subject MatterCriminal Law,s 107(b)Penal Code (Cap 224, 1985 Rev Ed),Proof of conspiracy,Nature of offence -Whether principal offender necessary,When inference justifiable,s 173 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Power of High Court to substitute conviction in appellate capacity,Whether two accessories can abet each other,Relevant considerations,Appellant's motive for lying,Trial judge's observation of witnesses,s 256(b)(ii) Criminal Procedure Code (Cap 68, 1985 Rev Ed),Factors relevant to drawing inference of conspiracy,Requisite mens rea,Substitution of conviction under amended charge,Evidence,Whether High Court in appellate jurisdiction should amend charge and substitute conviction,Whether buyer has right to do so,"Lucas" test,Buyer taking delivery and possession of goods without endorsed bills of lading,Appellant's lies as corroboration,Commercial Transactions,Trial judge's findings of fact,Charge,Whether lie evidence of or corroboration of guilt,Criminal Procedure and Sentencing,s 107(b) Penal Code (Cap 224, 1985 Rev Ed),Dishonest intent,Admissibility of evidence,Whether evidence supports inference of dishonest intent,Whether any basis to interfere with trial judge's decision to prefer evidence of Prosecution witness,Sale of goods,Circumstances in which appellant's lies may provide corroboration against him,Whether appellate court should overturn findings of fact,Lies,Abetment by conspiracy,Amendment,Corroboration,Courts and Jurisdiction,Appeals,Whether delivery conditional upon payment of,s 28 Sale of Goods Act (Cap 393, 1999 Rev Ed),Abetment,Whether negligence or failure to account for entrusted property constitutes dishonesty

: Introduction

Both appellants were convicted in the district court of abetment by conspiracy to commit criminal breach of trust (`CBT`), contrary to ss 109 and 409 of the Penal Code Cap 224 (`PC`).
The offence was committed in relation to certain goods, valued at about US$301,673. The first appellant (`B1`) was sentenced to four years and six months` imprisonment. The second appellant (`B2`) was sentenced to five years and six months` imprisonment. I allowed B1`s appeal against conviction, acquitted him and set his sentence aside. As for B2, I amended the charge against him, substituted the conviction and dismissed his appeal against conviction. I allowed his appeal against sentence, and reduced that sentence to four years` imprisonment. I now give my reasons.

Background facts

B1 was the managing director of a Singapore company of freight forwarders called `World Freight Pte Ltd` (`WF`). B2 was the managing director of a company called `Uncle Sam Apparel Pte Ltd` (`US Apparel`). The complainant was a Filipino businessman called Nari Kishanchand Gidwani (`PW13`).

Sometime in 1997, B2 contracted to purchase from PW13 500,000 pieces of Walt Disney apparel (`the goods`) at US$3 per piece.
The total price of the goods amounted to US$1.5m. Initially, it was agreed that the transaction would be financed by letters of credit. Accordingly, in October 1997, B2 opened letters of credit worth US$600,000 in part payment for the goods. Between 2 and 6 November 1997, he went to Manila and met up with PW13. During this trip, they agreed to change the mode of financing for the transaction from letters of credit to `documents against payment` terms (`D/P terms`). Pursuant to the new terms of payment, the bills of lading (`b/ls`) relating to the goods were consigned in favour of the Industrial and Commercial Bank Limited (`ICB`), who were B2`s bankers. It was understood between them that under the new terms of payment, B2 would pay ICB for the goods in order to get b/ls that were duly endorsed. These b/ls would then allow B2 to obtain the goods from the consignees.

B2 needed to ship the goods from the Philippines to Singapore, and he contacted B1 around the end of October 1997 for that purpose.
B1 and B2 had business dealings with each other since 1996, and B1`s freight forwarding company, WF, had handled many previous shipments for B2. At B1`s recommendation, a company in the Philippines called `Worldwide Consolidated Freight Corp` (`Worldwide`) was subsequently appointed as the freight forwarding agent in the Philippines to handle the shipment. When Worldwide prepared the ocean b/ls for the shipment, it named WF as the consignees in Singapore.

Following this, PW13 shipped a total of six container loads of Walt Disney apparel to Singapore.
This was done in three shipments - the first shipment consisted of two containers, the second consisted of one container and the last shipment consisted of three containers. All six containers were consigned to B1`s company, WF, which collected the three shipments from the Port of Singapore Authority (PSA) on 7, 10 and 13 November 1997 respectively.

B1 was meant to release the goods only upon presentation of b/ls that were duly endorsed by ICB.
However, he released the goods to B2 without receiving those b/ls. According to him, around 7 November 1997, on the arrival of the first two containers, B2 contacted him and said that he needed the goods urgently for his impending public sale at Seaview Hotel. B2 said that it would take some time for ICB to process the necessary documents, and he asked B1 to release the goods to him first. He assured B1 that he would pay for the goods and obtain the b/ls from ICB later on. He also gave B1 a verbal assurance that he would take responsibility in the event that WF faced any problems for releasing the goods without the duly endorsed b/ls.

Subsequently, on 13 November 1997, B1 delivered the first two containers to B2`s sales outlet at Seaview Hotel.
On 15 November 1997, he delivered the third container, and on 26 November 1997 he delivered the last three containers.

From 17 to 30 November 1997 and from 5 to 7 December 1997, B2 conducted public sales of Walt Disney and other brands of apparel at his sales outlet at Seaview Hotel.
Around 4 December 1997, PW13 (who was in the Philippines) was alerted by his sources in Singapore as to the public sales organised by B2. PW13 then contacted B1 to ascertain the whereabouts of his six containers of Walt Disney goods. By this time, B1 had already delivered all the goods to B2, but he did not inform PW13 of this. Instead, he assured PW13 that the goods were still in his custody.

PW13 was never paid for the goods, and B1 never received the duly endorsed b/ls from B2.
Between 13 to 15 December 1997, B1, with B2`s consent, retook custody of some cartons of Walt Disney apparel from B2`s premises. These were stored by B1 at his own expense at two warehouses at Jalan Terusan and Kallang Place. On 24 January 1998, B1 ceased providing agency services to B2.

Evidently, between 4 December 1997 and 27 February 1998, PW13 contacted B1 several times by telephone and fax, instructing B1 repeatedly not to release the goods to B2 unless he received an authentic `bank endorsement` from B2.
On each occasion, B1 lied to PW13 and repeatedly assured him that the goods in the six containers had not left WF`s custody and had never been handed over to B2. He also told PW13 that he had been informed by B2 that the bank endorsement was forthcoming.

Finally, in March 1998, B1 called PW13 and confessed that he had actually released the goods to B2 in November 1997 without first obtaining the duly endorsed b/ls.
He apologised, and asked for PW13`s forgiveness and explained the circumstances in which he had released the goods. He told PW13 that the goods had been released to B2 long before he received PW13`s call in December 1997. He said that he had previously lied about the whereabouts of the goods because he had hoped that PW13 and B2 would be able to sort things out between them. He said that he had now engaged a law firm Joseph Tan Jude Benny, to commence a civil action against B2, and was in the process of obtaining a Mareva injunction against the latter.

Thereafter, on or about 30 March 1998, PW13 lodged a complaint with Singapore`s Commercial Crime Division (`CCD`), and CCD commenced investigations against B1 and B2.

A survey of the goods stored by B1 at the two warehouses was carried out by Unispec Adjusters & Surveyors (S) Pte Ltd (Unispec) between 14 to 20 May 1998.
This survey was jointly arranged by PW13 and B1. B1 paid for the survey. Based on the quantity that had been shipped (as recorded in the shipping documents and invoices), and taking into account two cartons which had been taken away by the police in the course of the investigations, the inspection revealed that 3,327 cartons containing 94,147 pieces of Walt Disney apparel were missing. The value of the missing goods was estimated to be US$301,673.

In September 1998, CCD brought charges against B1 and B2 for abetting each other in a conspiracy to commit CBT.
In essence, the charges against B1 and B2 stated that between 11 and 26 November 1997, they had engaged with each other in a conspiracy to commit breach of trust of goods belonging to GG Sportswear Manufacturing Corporation of the Philippines, and that in pursuance of that conspiracy, and in order to the doing of that thing, they had made the necessary arrangements to take possession and to subsequently sell off 3,327 cartons containing 94,147 pieces of Walt Disney apparel valued at US$301,763. They were charged under s 409 of the Penal Code (`PC`), for an aggravated form of CBT, on the basis that the goods had been entrusted to B1 in his capacity as an agent.

The proceedings below

The prosecution`s case

Based on PW13`s evidence, the prosecution alleged that B2 had concluded a contract with PW13 in June 1997 for the purchase of 500,000 pieces of assorted Walt Disney apparel at US$3 per piece, and that he had conducted a full inspection of the goods in Manila between 2 and 6 November 1997. Those goods were then shipped by PW13 to Singapore, and were entrusted to B1 in his capacity as the shipping agent in Singapore. B2 was supposed to pay ICB for the value of the goods, in return for b/ls that were duly endorsed by ICB. He could then obtain possession of the goods in the custody of B1. However, the prosecution alleged that B2 and his company were in financial problems at that time, and B2 had no funds to pay for the goods. The prosecution called PW14, the Vice-President of ICB, who testified that B2 and US Apparel were facing a shortage of funds at the relevant time, and had exceeded their credit lines. The prosecution`s case was that B2, not having paid for the goods, conspired with B1 to commit CBT of the goods, and pursuant to that conspiracy, B1 delivered those goods to him. From 17 to 30 November 1997 and from 5 to 7 December 1997, B2 conducted public sales of clothing at his sales outlet at Seaview Hotel. He put up PW13`s goods for sale during those occasions, and sold some 3,327 cartons of the goods, containing 94,147 items of Walt Disney apparel, and pocketed the proceeds of sale. PW1, 2, 3 and 7, who had attended the sales, testified that at least half of the sales space, being about three quarters of the size of a football field, had been devoted to the sale of Walt Disney apparel.

With regard to B1, the prosecution relied on PW13`s evidence to show that B1 had released the goods to B2 with dishonest intent, for the purpose of abetting B2 to commit CBT of the goods.
PW13 testified that between December 1997 and February 1998, he corresponded several times with B1 via fax and telephone, repeatedly instructing B1 not to release the goods to B2 unless he received a valid bank endorsement. B1 assured him throughout that time that the goods had never left his custody and would not be...

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