Ghazali bin Mohamed Rasul v PP

• Jurisdiction: Singapore
• Judgment Date: 25 July 2014
• Date: 25 July 2014
• Docket Number: Magistrate's Appeal No 321 of 2013
• Court: High Court (Singapore)

Ghazali bin Mohamed Rasul

Plaintiff

and

Public Prosecutor

Defendant

[2014] SGHC 150

See Kee Oon JC

Magistrate's Appeal No 321 of 2013

High Court

Criminal Procedure and Sentencing—Sentencing—Estate agent introduced client to licensed moneylender—Estate agent received referral fee from moneylender for that introduction—Whether sentence manifestly excessive—Regulations 6 (1) (a) and 6 (1) (b) Estate Agents (Estate Agency Work) Regulations 2010 (S 644/2010)

The appellant was a registered estate agent who pleaded guilty to two charges under the Estate Agents (Estate Agency Work) Regulations 2010 (S 644/2010) (‘the EAR 2010’): the first under reg 6 (1) (a) for introducing a client to a moneylender, and the second under reg 6 (1) (b) for receiving a sum of $150 from the moneylender as a referral fee in respect of that introduction. A further four charges for similar offences were taken into consideration.

At first instance he was sentenced to a fine of $10,000 for the introduction charge and $8,000 for the referral fee charge. The appellant appealed on the basis that the sentences were manifestly excessive and that there were two errors in the district judge's grounds of decision that suggested that he had not properly appreciated the material before him.

Held, allowing the appeal:

(1) The two errors were immaterial as in neither case could it be said that the appellant had suffered any prejudice. The first error, a misstatement in the number of charges taken into consideration for the purposes of sentencing, was so minor that it could not be said that this error had any substantive effect. The second error, stating that the appellant had a criminal antecedent when he had a clean record, was immaterial because it was not apparent that the district judge laboured under this misapprehension at the time the sentence was passed: at [39] to [41] .

(2) This was the first offence prosecuted under reg 6 (1) of the EAR 2010. Rather than benchmarking the sentences against those meted out for offences under s 29 (1) (a) of the Estate Agents Act (Cap 95 A, 2011 Rev Ed), it would be more appropriate to take reference from offences analogous in terms of criminality. The essence of offences under reg 6 (1) was the potential conflict of interest that arose when a property agent was involved in moneylending: there was a risk in such cases that he would prefer his interest to the detriment of that of his clients. Cases of corruption involving private sector agents and relatively modest amounts of gratification were therefore the closest comparator: at [50] , [53] , [54] and [63] .

(3) It would be a factor in mitigation that a person was charged under reg 6 (1) (a) for introducing a client to a moneylender but there was no corresponding charge under reg 6 (1) (b), ie, the accused was not charged for receiving a benefit in respect of that moneylending transaction. But if there was a corresponding charge for receiving a benefit, the presence of such benefit could not be taken to aggravate an offence under reg 6 (1) (a); similarly and conversely, the fact that the agent made an introduction or referral could not aggravate an offence under reg 6 (1) (b). On the other hand, if there was an introduction or referral and a corresponding reward, fee or benefit was given, but no charge under reg 6 (1) (b) was laid, the fact that such benefit was given might be viewed as an aggravating factor for the offence charged under reg 6 (1) (a): at [57] .

(4) The principles relevant to sentencing were: (a) whether the clients were vulnerable; (b) the extent of the accused estate agent's involvement with the moneylender; (c) whether and to what extent the clients were materially prejudiced due to the agent's actions; (d) the amount received by the agent as a benefit; and (e) the extent to which it might be said the agent preferred his own interest to that of his clients. Where the accused person had not exploited vulnerable clients systematically, had no formal or standing arrangements to refer clients to moneylenders, had not caused substantial loss to his clients, and did not prefer his own interest to any significant extent, the appropriate starting point was a fine of $3,000 to $5,000 for each offence where the accused was charged under both reg 6 (1) (a) and reg 6 (1) (b): at [61] , [63] and [65] .

(5) A sentence substantially higher than the starting point was not merited on the facts. First, there was no evidence that the interests of the client were materially prejudiced as a result of the appellant's actions. Second, the nature of the arrangement between the appellant and the moneylender was ad hoc and informal rather than systematic and formal. Third, the amount of benefit received by the appellant was modest both as an absolute sum as well as in comparison with the amount of fees he would have earned as an estate agent in commission. Fourth, it was not the case that the appellant had exploited vulnerable or poorly educated clients. A fine greater than the starting point for the introduction charge was appropriate because there were a total of four such reg 6 (1) (a) charges, with one proceeded with. Accordingly the fine for the reg 6 (1) (a) charge was reduced from $10,000 to $5,000. In respect of the referral fee charge brought under reg 6 (1) (b), there was nothing to justify a sentence higher than the starting point, and the fine was thus reduced from $8,000 to $3,000: at [67] , [68] , [70] to [72] , [79] and [80] .

[Observation: Unless the estate agent had actively instigated his clients to borrow from moneylenders, it would be substantively unfair to view any unhappy outcomes on the part of the clients as aggravating a reg 6 (1) offence especially where the offender's involvement was minor and limited. While the executive had seen fit to fix estate agents with particular duties with respect to their relationships with moneylenders, it did not follow that estate agents had to bear the full criminal responsibility for whatever consequential troubles befell their clients who borrowed money from licensed moneylenders. It bore repeating that the Prosecution, no less than defence counsel, stood as officers of the court, and had an obligation to make submissions that were fair, measured and in the public interest, but always with due regard to the circumstances of the case: at [77] and [78] .]

Angliss Singapore Pte Ltd v PP [2006] 4 SLR (R) 653; [2006] 4 SLR 653 (refd)

Chua Tiong Tiong v PP [2001] 2 SLR (R) 515; [2001] 3 SLR 425 (refd)

JS Metal Pte Ltd v PP [2011] 4 SLR 671 (refd)

Kua Hui Li v Prosper Credit Pte Ltd [2014] 3 SLR 1007 (refd)

Kwang Boon Keong Peter v PP [1998] 2 SLR (R) 211; [1998] 2 SLR 592 (refd)

Law Society of Singapore v Wan Hui Hong James [2013] 3 SLR 221 (refd)

Ong Chee Eng v PP [2012] 3 SLR 776 (refd)

PP v ACI [2009] SGHC 246 (refd)

PP v Teng Cheow Hing [2005] SGDC 38 (refd)

PP v UI [2008] 4 SLR (R) 500; [2008] 4 SLR 500 (refd)

Tan Tze Chye v PP [1996] 3 SLR (R) 357; [1997] 1 SLR 134 (refd)

Teo Chu Ha v PP [2013] 4 SLR 869 (refd)

Yap Ah Lai v PP [2014] 3 SLR 180 (refd)

Estate Agents Act (Cap 95 A, 2011 Rev Ed) ss 29 (1) (a) , 30, 31, 32, 33, 34, 42, 44, 72

Estate Agents (Estate Agency Work) Regulations 2010 (S 644/2010) reg 6 (consd) ;regs 6 (1) (a) , 6 (1) (b)

Gas Act (Cap 116 A, 2002 Rev Ed) s 32 A (2)

Housing and Development Act (Cap 129, 2004 Rev Ed) s 51

Housing and Development (Amendment) Act 2010 (Act 18 of 2010) s 5

Prevention of Corruption Act (Cap 241, 1993 Rev Ed) s 6 (a)

Derek Kang and Andrea Gan (Rodyk & Davidson LLP) for the appellant

Sanjna Rai (Attorney-General's Chambers) for the respondent.

See Kee Oon JC

Introduction

1 This was an appeal against the decision of the district judge (‘the District Judge’) in PP v Ghazali bin Mohamed Rasul [2014] SGDC 59 (‘GD’). The appellant was a property agent who pleaded guilty to two charges under the Estate Agents (Estate Agency Work) Regulations 2010 (S 644/2010) (‘the EAR 2010’). The first charge, under reg 6 (1) (a), was for introducing his client to a licensed moneylender; and the second, under reg 6 (1) (b), was for receiving a sum of $150 from the moneylender in return for that introduction. A further four charges for similar offences were taken into consideration. For convenience I will refer to the first charge as the ‘introduction charge’ and the second charge as the ‘referral fee charge’.

2 The maximum punishment prescribed under the EAR 2010 in respect of each of the proceeded charges is a fine of $25,000, or one year's imprisonment, or both. On 11 December 2013, the appellant was sentenced to a fine of $10,000 in respect of the introduction charge, and a fine of $8,000 in respect of the referral fee charge. He appealed on the basis that the sentences were manifestly excessive.

3 On 18 June 2014, I allowed the appeal to the extent that the fines were reduced to $5,000 for the introduction charge, or 20 days' imprisonment in default, and $3,000 for the referral fee charge, or 12 days' imprisonment in default. In allowing the appeal, I observed that the District Judge ought not to have taken as his starting point for reference sentencing precedents relating to offences committed under s 29 (1) (a) of the Estate Agents Act (Cap 95 A, 2011 Rev Ed) (‘the EAA’). This provision made it an offence for unregistered persons to masquerade as or perform the work of registered estate agents. In my opinion, this offence was not analogous in terms of criminality to the offences committed by the appellant.

4 As this appears to be the first time that a person has been prosecuted for breaching reg 6 (1) of the EAR 2010, I now provide the detailed reasons for my decision.

Facts and the decision below

5 At the time of the offences, the appellant was a registered salesperson with Prop Nex Realty Pte Ltd. Some time in May 2011, one Mohammad Redzuwan bin Ibrahim (‘Redzuwan’), a relief...