Gunasegeran s/o Pavadaisamy v Public Prosecutor

JurisdictionSingapore
JudgeYong Pung How CJ
Judgment Date01 September 1997
Neutral Citation[1997] SGHC 227
Docket NumberMagistrate's Appeal No 12 of 1997
Date01 September 1997
Published date19 September 2003
Year1997
Plaintiff CounselTan Hee Liang (Tan See Swan & Co)
Citation[1997] SGHC 227
Defendant CounselDeena Abdul Aziz Bajrai (Deputy Public Prosecutor)
CourtHigh Court (Singapore)
Subject MatterOffences,Elements of offence,Sentence enhanced to 12 months' imprisonment,Enhancement of sentence,Sentence of six months' imprisonment not proportionate to crime committed,Sentencing,Documents,Forgery,Whether appellant had dishonest or fraudulent intention in deception of victim,s 471 Penal Code (Cap 224),s 420 Penal Code (Cap 224),Cheating,Whether all elements of offence satisfied,Criminal Law,ss 415 & 420 Penal Code (Cap 224),Property,Criminal Procedure and Sentencing,Whether appellant's deception induced victim into paying for car
Judgment:

1.YONG PUNG HOW CJ

The charge

The appellant was charged with two offences as follows:

DAC 15869/96

You,

Gunasegeran s/o Pavadaisamy, m/36 yrs

NRIC No S1350216A

are charged that you, on or about 30 June 1994, at a place in Singapore, did cheat, to wit, by deceiving one Tomoyuki Suzuki into believing that you would transfer on or about 30 June 1994 the ownership of a certain property, to wit, a motor-car bearing registration no EG 2037 G, to the said Tomoyuki Suzuki and by such manner of deception you dishonestly induced the said Tomoyuki Suzuki to deliver a sum of $60,568 to you, being the purchase price of the said property inclusive of the transfer of ownership, an act which he would not have done had he not been so deceived and you have thereby committed an offence under s 420 of the Penal Code (Cap 224).

And

DAC 15870/96

You,

Gunasegeran s/o Pavadaisamy, m/36 yrs

NRIC No S1350216A

are charged that you, sometime in the month of June 1995, at ESH Credit Pte Ltd, 11 East Coast Road #02-30, Odeon Katong Shopping Complex, Singapore, did fraudulently use as genuine the following documents:

1 ESH Credit Pte Ltd `Hire Purchase Act, Cap 125, Second Schedule, Summary of Financial Obligations under Proposed Hire Purchase Agreement` dated 2 June 1995;

2 Notice of Hire-Purchase undated;

3 ESH Credit Pte Ltd `Application for Hire Purchase/Bill of Sale` undated; and

4 ESH Credit Pte Ltd `Hire Purchase Agreement` dated 2 June 1995, all purporting to be signed by one Tomoyuki Suzuki, knowing or having reason to believe the same to be forged and you have thereby committed an offence under s 471 and punishable under s 465 of the Penal Code (Cap 224).

2.The appellant claimed trial on both counts. The district judge convicted him on both charges and sentenced him to a term of imprisonment of six months for each offence, both of which were to run concurrently. The appellant appealed against the decision of the judge. I dismissed the appeal and at the same time enhanced the sentence on the first charge to one of 12 months` imprisonment, to run concurrently with the sentence for the second charge, which I left untouched. I now give my reasons.

3. The case for the prosecution

The prosecution called eight witnesses, including the complainant, Tomoyuki Suzuki (PW1) himself, who alleged that the appellant had cheated him as well as forged certain documents using his signature. Their case thus relied heavily on the evidence given by him. In addition, their other main witness was Yvonne Lim (PW2), the officer of ESH Credit Pte Ltd (ESH) who dealt with the appellant and PW1. The prosecution alleged that the appellant had, without the consent of PW1, remortgaged to ESH a car, which he had originally sold to PW1, in return for a loan. They alleged that the appellant had fraudulently used forged documents to obtain this loan from ESH for his own benefit.

4.The case for the prosecution was as follows: PW1 was a Japanese national working as a project manager in Singapore. He came to work in Singapore sometime in early May 1994. A month later, in June 1994, he decided to buy a car. He was introduced to the appellant, who at that time was the mechanic of his company. The appellant showed him a secondhand 1977 model Mercedes Benz (the car). PW1 test drove the car, was happy with it, and after some bargaining with the appellant, agreed on a price of $60,000 for its purchase. A few days later, the appellant faxed PW1 a letter containing the details of the car and the terms of purchase. This letter stated the total price payable, including the transfer fee and insurance for the car. The total amount came out to be $60,568.

5.PW1 paid the appellant for the car on 30 June 1994. The car was thus delivered to him together with a receipt acknowledging payment. After this transaction, the appellant informed PW1 that the car would be transferred into his name immediately. But before this could be done, PW1`s passport, driving licence and employment pass were needed. PW1 gave these documents to the appellant. PW1 also asked about the `red book` for the car, but was told by the appellant that the `red book` system was no longer in use in Singapore. It has since been established that this `red book` referred to the log book for the car. PW1 was not informed that, at that time when he bought the car, it was still under a hire-purchase scheme taken out by the appellant some time ago. As far as he was concerned, he did not feel that there was anything amiss. He had paid for the carand now had possession of it. Further, there was a receipt given to him by the appellant, something which he thought would prove that he was the rightful owner of the car. He therefore expected the appellant to effect the transfer of the car to his name immediately.

6.It was only in June 1995, almost a year later, when a friend of PW1 told him that every car should have a log book. According to his friend, without a log book, there would be difficulty selling the car in the future. At that material time, PW1 still had no idea that the log book his friend was talking about was actually the `red book` which he had asked the appellant for previously. Nevertheless, he called the appellant and asked for the return of the car`s log book. The appellant agreed. PW1 pestered the appellant several times, but each time the appellant came up with a different excuse for not producing the log book.

7.In September 1995, nearly 15 months after PW1 had purchased the car, he went personally to the appellant`s office. It appeared that PW1 was upset at the continual delay and the reluctance of the appellant to return the log book. It was only then, accordingly to PW1, that the appellant confessed for the first time that he had borrowed some money using the log book. PW1 testified that the appellant told him that his partner had absconded with the money which he paid for the car and which was meant to repay a loan which the appellant had borrowed. The appellant then promised that he would personally settle the loan and return PW1 the car`s log book. PW1 gave him one month to do so. To keep the appellant to his promise, an undertaking was signed by him in favour of PW1.

8.The log book was never returned to PW1. Sometime in February 1996, the car was suddenly towed away. PW1 was told by the person who came to tow away his car that the car was being taken away because he had failed to repay his loan. PW1 thereupon made a police report at the police station claiming that he had been cheated by the appellant.

9.Upon his return to his office later that same afternoon, he telephoned ESH, the hire purchase company on whose instructions the car was being towed away. He spoke to Yvonne, subsequently identified as PW2 in the trial below. PW2 faxed PW1 some documents which showed that ESH had a right to the car and referred PW1 to some signatures which were supposed to be his. PW1 protested that he had not signed those documents. At that moment, he realised for the first time that his name had been forged to obtain a loan for the car. Subsequently, PW1 called the appellant, who said he would settle the loan. On 11 March 1996, PW1 asked the appellant for another undertaking that he would settle the loan . The appellant agreed. However, after a series of faxes between the two of them as to this undertaking, it was still not signed as the amount owing to ESH was not known. Two days later, upset that the appellant had continually done nothing, PW1 called the appellant to accompany him to ESH`s office to settle the loan.

10.At ESH`s premises, PW1 was shown the documents relating to the hire purchase of the car. He insisted that he had not signed any of the documents which authorised the remortgage of the car in return for a loan being granted. PW1 was also shown the log book, where he saw his name, although he failed to see when the car was transferred into his name. Accordingly to PW2, while at ESH`soffices, the appellant told PW1 that he had been cheated by his partner. His partner had taken out a loan for the car on behalf of PW1 without anyone`s knowledge. The appellant thus asked PW1 for time to settle the loan. He paid four instalments there and then, representing repayment up to the ninth instalment, in addition to the repossession fees and storage fees. As for the remaining outstanding amount, at the appellant`s request, PW1 gave him a further grace period of six months to settle it. This was despite ESH`s insistence that the full loan should be repaid. PW2 also testified that PW1 was told that, if he wanted the car back, he had to sign an undertaking confirming that the signatures on the hire purchase forms which he alleged to be forged were his. PW1, anxious to get back his car, agreed. The appellant also signed an undertaking that he would settle the ESH outstandings within six months. This was done in the presence of PW2. The car was then released to PW1. The judge noted that, at the commencement of the trial, the log book of the car was still in the possession of ESH.

11.As for the testimony of PW2, other than what occurred when PW1 and the appellant went to ESH`s premises on 13 March 1996, her evidence related to the request for the loan for PW1`s car. She stated that a car broker, Gana Prakasam (PW7), had approached ESH for a car loan sometime in May 1995. It was ESH`s normal procedure and practice that PW7 take out the loan forms or documents for his customer to sign. Blank forms were therefore given to PW7 to obtain the relevant customer`s signature. Having obtained PW1`s signature, PW7 brought back to ESH the identity card of the appellant, the ex-owner of the car, and PW1`s passport, driving licence, work permit card and valid insurance certificate. PW2 further admitted she signed as a witness to the execution of the loan by PW1 even though she had neither seen him nor witnessed his execution of the documents. The loan was subsequently approved, but, due to a...

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