Goldring, Timothy Nicholas v Public Prosecutor and other appeals

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 11 June 2015
• Neutral Citation: [2015] SGHC 158
• Plaintiff Counsel: The appellants in MA 121-122/01 and respondents in MA 121-122/02 in person
• Docket Number: Magistrate’s Appeals No 121—122 of 2014/01—02
• Date: 11 June 2015
• Hearing Date: 20 April 2015,16 February 2015
• Subject Matter: Property,Criminal procedure and sentencing,Cheating,Complicity,Offences,Sentencing,Criminal conspiracy,Criminal law
• Year: 2015
• Citation: [2015] SGHC 158
• Defendant Counsel: Sandy Baggett, Kevin Yong and Nicholas Khoo (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Published date: 23 June 2015

Tay Yong Kwang J: Introduction

This case is one of those that lie at the crossroads of criminal law and contract law. Can a non-reliance clause negate the element of inducement required to establish an offence of cheating? This is one of the many issues that arose in these cross-appeals from the decision of the District Judge (“the DJ”) in Public Prosecutor v Timothy Nicholas Goldring, Geraldine Anthony Thomas and John Andrew Nordmann [2014] SGDC 422 (“GD”).

Three accused persons, Timothy Nicholas Goldring (“Goldring”), Geraldine Anthony Thomas (“Geraldine”) and John Andrew Nordmann (“Nordmann”), were charged with 86 counts of conspiring to cheat by inducing delivery of property under s 420 read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”). They claimed trial to 18 charges and the other 68 charges were stood down. After the trial, Geraldine was acquitted in respect of her charges. Goldring and Nordmann (collectively the “Appellants”) were convicted on those 18 charges (which were amended to delete the references to Geraldine) and sentenced to seven and eight years’ imprisonment respectively. Both Appellants have appealed against their convictions and sentences while the Prosecution has cross-appealed against the Appellants’ sentences. The Prosecution also appealed against Geraldine’s acquittal but that appeal has been discontinued.¹

After reserving my decision, I now dismiss all the appeals for the reasons set out in this judgment.

Background facts

The Appellants were directors and shareholders of Profitable Plots Pte Ltd (“PPPL”). PPPL was incorporated in Singapore in 2005 and it generally offered land investment opportunities. Its repertoire of products grew in 2008 when it introduced an array of fuel additives and lubricants (“Boron Products”). These Boron Products were produced by an American company, Advanced Lubrication Technology Inc (“ALT”), which gave exclusive distributorship rights in certain territories to Profitable Group Limited (“PG Dubai”), a Dubai-incorporated company whose directors and shareholders included the Appellants. This agreement obligated PG Dubai to purchase a minimum amount of Boron Products each year for four years (it was US$2.5m for the year beginning October 2008). As PG Dubai had no staff, active business or physical address, Goldring executed an agreement for PPPL to market and sell the Boron Products. Around that time, PPPL also acquired a UK company, Vawtech Ltd (“Vawtech”), which held the exclusive distributorship rights for Boron Products in UK.

For the purported purpose of funding inventory purchases of Boron Products, PPPL introduced an investment scheme in November 2008 called the “Boron Scheme”. Each investment unit was $1,000 and investors were promised a return of 12.5% on the principal amount invested within a maximum of six months from the date of investment. When the Boron Scheme was marketed to the public, there were two representations that were made and which were false, namely, that the money invested would be used exclusively to finance the purchase of Boron Products and that the Boron Products had been pre-sold to major corporations (respectively the “Exclusive Use Representation” and “Pre-Sold Representation” and collectively the “Representations”). Both Representations were communicated to the investors mostly via sales agents using various means including a set of presentation slides (the “Boron Slides”) and a marketing brochure (the “Boron Brochure”). There were three versions of the Boron Brochure dated November 2008, May 2009 and September 2009 respectively. The second version merely changed the investment quantum from US$1,000 to US$10,000 and the third changed the maturity period from six months to twelve. In addition to these materials, there was also a set of scripted answers to frequently asked questions (“Boron Scripts”) prepared by Nordmann and made available to sales agents, although not many used them.

Generally, to invest in the Boron Scheme, each investor had to fill in a Product Request Form (“PRF”) indicating the product and the quantity he or she was interested in. The investor would then deliver money to PPPL (or another Profitable Group entity) or convert an existing investment to a Boron Scheme investment or do a combination of both. In turn, he or she would receive a Transfer of Title form (“TB1”) which served as the contract. The counterparty named in the TB1 was the inactive entity, PG Dubai.

The investors referred to in the 18 proceeded charges (“the Investors”) were given and did rely on the Representations before investing in the Boron Scheme. The Investors invested in their own names, except for two (the details of whom I will elaborate on later).

At the end of the six-month window, the Investors failed to receive their returns as promised. Some were told that the company was waiting for certain pieces of land in the Philippines to be sold. Others were told that their investments were with PG Dubai and that PPPL was merely the marketing agent. They did not receive their investment monies back. Eventually, complaints were made and the Appellants were charged with conspiring to cheat.

Proceedings below

It was the Prosecution’s case that the Appellants, knowing that the Representations were false, conveyed or authorised others to convey them to the Investors. The charges against the Appellants on which the Prosecution proceeded (before they were amended upon the acquittal of Geraldine) were similarly framed. They read (with the necessary modifications):

“… are charged that you, between November 2008 to August 2010, in Singapore, being a director of Profitable Plots Pte Ltd (“the Company”), did engage with one [John Andrew Nordmann or Timothy Nicholas Goldring] and one Geraldine Anthony Thomas in a conspiracy to do a certain thing, namely, to cheat the customers of an investment scheme promoted by the Company (“the Boron Scheme”), in pursuance of that conspiracy and in order to the doing of that thing, an act took place, to wit, [on various dates] the Company, on your authorisation, represented to [an Investor] that money to be invested by [him or her] through an investment scheme offered by the company (“the Boron Scheme”), would be used exclusively to finance the purchase of Boron CLS Bond products that has purportedly been pre-sold to major corporations, which representation you knew to be untrue, and by such manner of deception, you dishonestly induced the said [Investor] into delivering a total sum equivalent to [the sum invested] to the Company to be invested in the Boron Scheme for a return of 12.5% within a maximum of 6 months, which [the Investor] would not have done if [he or she] was not so deceived, and which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 109 read with Section 420 of the Penal Code, Chapter 224 (2008 Revised Edition).”

At trial, Goldring and Geraldine elected to remain silent. Nordmann tried to distance himself from the Representations and the Boron Scheme. According to him, the Boron Scheme was the product of a discussion between John Gaunt and James Hodgson. John Gaunt was hired in September 2008 as PPPL’s CEO to optimise PPPL’s business at a time where it had diverse business interests. The sale of Boron Products was one of his responsibilities. However, he was fired in July 2009 by Goldring allegedly because he had not delivered the performance expected of him. James Hodgson was the marketing director and a director of PPPL from 2006 until May 2009, when he was removed at an extraordinary general meeting. It was alleged that James Hodgson instructed Cedric de Souza (the marketing manager) to add the Representations into the Boron Brochure without Nordmann’s knowledge.

The DJ rejected Nordmann’s defence. With regard to the two Appellants, he found that the three essential elements of cheating had been established beyond reasonable doubt (GD at [409]). First, the element of deception was satisfied because both Representations were false and the 18 Investors were deceived by the cumulative conduct of the Appellants and their agents (ie, PPPL’s sales agents) that the Representations were true. Next, the element of inducement was satisfied because the Representations were among the reasons (even if not the predominant reason) the Investors invested in the Boron Scheme by delivering property to PPPL. Third, the element of dishonest intent was satisfied since the Appellants knew that the Representations were false. Nordmann, in particular, had come up with the Boron Scheme and the contents of the Boron Brochure (GD at [648]–[664]). The DJ was also satisfied that the Appellants had engaged in a conspiracy to cheat by abetment (GD at [544]–[548]). Both approved the Boron Scheme as directors and were directly responsible for setting up the Boron Scheme in various ways.

The DJ, however, found that Geraldine had no role in making or authorising the false representations (GD at [686]–[691]). He could not find, beyond a reasonable doubt, that she had any knowledge of whether Boron Products were sold before the launch of the Boron Scheme or throughout its duration. While Geraldine was a finance director and a signatory of PG Dubai’s accounts, she acted on the Appellants’ instructions.

Accordingly, the DJ convicted the Appellants on their charges but acquitted Geraldine on her charges. He then sentenced Goldring and Nordmann to a total of seven and eight years’ imprisonment respectively.

Both the Appellants and the Prosecution, dissatisfied with the DJ’s decision, appealed to the High Court. The Appellants appealed against conviction and sentence while the Prosecution appealed against sentence.

The appeal against conviction

The law on the role of the appellate court in an appeal against conviction is settled. An appellate court may reverse a judgment only if it...