Gopalakrishnan Vanitha v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 06 September 1999
• Neutral Citation: [1999] SGHC 237
• Docket Number: Magistrate's Appeal No 51 of 1999
• Date: 06 September 1999
• Year: 1999
• Published date: 19 September 2003
• Plaintiff Counsel: Peter Keith Fernando (Leo Fernando)
• Citation: [1999] SGHC 237
• Defendant Counsel: Bala Reddy and Imran Abdul Hamid (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Nature of property in pre-signed blank cheque,Criminal breach of trust,Entrustment of property,Criminal Procedure and Sentencing,s 408 Penal Code (Cap 224),Property,Whether sentence manifestly excessive,Charge,Offences,Whether use of term 'funds' vague or meaningless,Sentencing,Criminal Law

: The appellant was tried and convicted by a district judge on three charges of criminal breach of trust. The first charge read as follows:

You, Gopalakrishnan Vanitha, F/42 years, NRIC NO S 1109863/J, are charged that you, between 1 May 1994 and 30 April 1995, at TRAC Chemicals Pte Ltd located at No 8 Kaki Bukit Road 2 [num ]04-03, Singapore, being a servant employed by TRAC Chemicals Pte Ltd in the capacity of a Secretary cum Office Administrator, and being entrusted in such capacity with property, to wit, funds belonging to the said TRAC Chemicals Pte Ltd, committed criminal breach of trust by dishonestly misappropriating $11,369.73 in respect of the said property, and you have thereby committed an offence punishable under s 408 of the Penal Code (Cap 224).

The second and third charges were in the same terms but were respectively in reference to a period between 1 May 1995 and 30 April 1996, with respect to a sum of $12,440; and to a period between 1 May 1996 and 30 April 1997, with respect to a sum of $30,113.29.

The appellant was sentenced to six months` imprisonment on the first and second charges and to 12 months` imprisonment on the third charge. The sentences under the first and third charges were ordered to run consecutively and concurrently with the sentence under the second charge. The appellant appealed against both her conviction and sentence. I heard her appeal on the three charges on 29 July 1999. After listening to arguments by counsel for the appellant, I dismissed the appeal. I now give my reasons.

The prosecution`s case

The material facts of the prosecution`s case are as follows. The appellant was employed by TRAC Chemicals Pte Ltd (`the company`) from 21 March 1994 to 10 May 1997 as a confidential secretary/office administrator. The general duties and responsibilities performed by the appellant in this capacity, included, inter alia, being responsible for petty cash, minimal accounting and relevant payments, as was stated in her letter of appointment.

As for the profile of the company, it suffices to say here that it was a small company that was engaged essentially in the marketing of chemicals. The managing director of the company, one Lie Tjoan Liang, was stationed in Indonesia while the Singapore office was headed by one Edward Tracogna (`Tracogna`), the technical manager. The funds of the company were kept in an account with the United Overseas Bank and could be accessed by way of cheques signed by Tracogna.

During the course of the appellant`s employment, as Tracogna himself was fully employed in another occupation, he was able to manage the business of the company only during the weekends. It was thus Tracogna`s practice to leave much of the running of the company to the appellant, whom he and the managing director trusted fully. Tracogna would usually go to the company only on Saturdays for a debrief of the events of the week and it was during such times that Tracogna would authorise payments by cheque for salaries, CPF contributions and other expenses incurred by the company.

It was also during these Saturdays that the appellant would present Tracogna with blank cheques to sign. Tracogna would not question what the payments were for as he trusted the appellant completely in handling the financial aspects of the company and saw no reason to suspect her. Tracogna gave evidence that his intention had been for the blank cheques to be used by the appellant in situations of emergency which required payments to be made on behalf of the company during his absence.

Sometime in March or April 1997, the appellant took ill and was hospitalised. During this time, the then product manager of the company, one Eddie Chia Loy Hee (Eddie), received many demands for payments by the company`s suppliers. Eddie visited the appellant at the hospital and inquired about the cheques to the suppliers as well as the cheques for salaries. The appellant replied that she was not aware of where the cheques were. Eddie informed Tracogna of this matter and asked him about the cheques, to which Tracogna`s response was that he had already signed the cheques. Eddie subsequently spoke to the appellant again, whereupon she then said that she would come out of the hospital to check on this matter. She was however advised against leaving the hospital by Eddie who thought it better that she should remain in the hospital since she was not well.

Upon being informed of the state of affairs, Tracogna arranged for a locksmith to open the appellant`s locked office drawer, which contained the office cheque book, in Eddie`s and his presence. The drawer was found to be in a state of mess and they discovered in it a stack of unfiled documents, including correspondence, cheques, bills and invoices. Suspecting that something was amiss, Tracogna called for the company`s bookkeeper, Mr Mark Leu Yew Yue (Mark), to audit the accounts. In addition, a new auditor was appointed to conduct an audit on the funds of the company and look into the matter of possible misappropriation of funds. The audit was performed by one Siang Bee Huat (Siang) and many discrepancies were found with respect to the appellant`s salary and CPF payments as well as other allegedly unauthorised payments which the appellant had been making.

Tracogna sought to contact the appellant for an explanation but was unsuccessful in his attempts. A notice was also given to the appellant to attend an inquiry, for which she failed to turn up. Soon after, a letter was drafted and sent to the appellant terminating her services with the company and also to seek restitution for the funds allegedly misappropriated. This letter was however returned unclaimed. On the advice of his solicitors, Tracogna lodged a police report against the appellant.

At the ensuing trial below, it was submitted by the prosecution that the appellant had overpaid her own salary, made excessive employers` CPF contributions to herself and paid for her personal bills, all using the funds of the company in an unauthorised manner. The appellant was able to do this by using the pre-signed blank cheques that had been entrusted to her by Tracogna. The reason given by Tracogna for pre-signing the blank cheques was that he had trusted the appellant in the day-to-day running of the company`s business and the cheques were pre-signed for convenience since, due to his other job, Tracogna was often not in the company office and had to travel frequently.

Documentary evidence was relied on to show that the appellant was employed on a salary of $1,400 per month, which was later increased to $1,600 a month from 1 January 1995 onwards. It was submitted that the invoices, payment vouchers, bank statements, CPF records of payments as well as the IR8A tax forms that were adduced as evidence in the trial all went towards showing the misappropriation that had been committed by the appellant.

The defence

The appellant did not deny that she had received the allegedly misappropriated sums. Her defence was that the amounts she had received were all authorised and legitimate. She disputed the facts as presented by Tracogna and claimed that she had been given salary increments during the course of her employment, to be specific, from $1,400 to $1,600 in July 1994, from $1,600 to $1,900 in September 1994 and from $1,900 to $2,400 in January 1996. The appellant also sought to explain that the sums she had received appeared inflated because they included allowances for transport and overtime, which were legitimately given in addition to her gross salary. She further claimed that the use of company funds to pay off her personal bills had all been personally authorised by the managing director stationed in Indonesia.

Counsel for the appellant also argued that the three charges were fundamentally flawed as they failed to state what were the funds that were entrusted to the appellant. Counsel contended that the word `funds` used in the charges was vague and meaningless thereby rendering the charges defective.

It was further argued by counsel that the prosecution had failed to prove in law and in fact that the appellant was entrusted with property, an essential element of the offence. The defence`s case was that the appellant was never given any pre-signed blank cheques by Tracogna, and that, even if she had been given such cheques, she was at best only entrusted with signed blank cheques per se. This, it was contended,...