Leck Kim Koon v PP

• Jurisdiction: Singapore
• Judge: Vincent Hoong J
• Judgment Date: 20 October 2021
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeal No 9884 of 2020

Leck Kim Koon

and

Public Prosecutor

[2021] SGHC 236

Vincent Hoong J

Magistrate's Appeal No 9884 of 2020

General Division of the High Court

Criminal Law — Offences — Property — Cheating — Offender authorising submission of applications for disbursement of moneys to various banks using transport document which had already been used to obtain prior disbursement from another bank — Whether corporate body could be deceived where no human agent was identified — Section 420 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Law — Offences — Property — Cheating — Offender authorising submission of applications for disbursement of moneys to various banks using transport document which had already been used to obtain prior disbursement from another bank — Whether criminal culpability for cheating was precluded by availability of claim in fraudulent misrepresentation — Section 420 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Principles for reducing sentence on account of ill health — Offender suffering from serious medical conditions — Whether judicial mercy warranted — Whether ill health mitigating factor

Held, dismissing the appeal:

(1) The offence of cheating under the Penal Code bore a significant overlap with fraudulent misrepresentation at common law, and could arise from the same set of facts. However, it was not the case that because civil remedies were available, criminal culpability would not arise. This was because civil liability in fraudulent misrepresentation was meant to compensate the innocent party, while the offence of cheating was meant to punish behaviour considered unacceptable by society: at [20] to [22].

(2) A company or corporate body, as a legal construct, could only act through its officers, and was more than the sum of its parts. Accordingly, a corporate body could be the victim of cheating even if no human agent was in fact deceived, if it could be shown that the acts taken by the offender were such as to induce an action on the part of the corporate body, either as part of its internal protocol or management processes: at [24] to [26].

(3) Where no particular human agent of the corporate body was identified to prove that the corporate body was deceived, it would be sufficient for the Prosecution to show that the corporate body's processes were utilised to induce that corporate body to act in a manner that it would not have acted if the “representation” was not made: at [28].

(4) From the evidence of the bank officers from the various banks, it was clear that the transport documents were required in order for the various banks to disburse the moneys. As the transport documents submitted falsely represented to the various banks that the genuine trade transactions had existed, the element of deception was made out: at [29] and [30].

(5) As long as the deception played some part in inducing the various banks to disburse the moneys, the element of inducement was satisfied. In the present case, the various banks had relied on the provision of the transport documents provided by Intraluck, and were induced into disbursing the moneys to the suppliers under the relevant invoices: at [31].

(6) The statements recorded from the appellant were accurate and showed that the appellant knew that the various banks required copies of the transport documents in order for the funds to be disbursed, and had certified true and directed the submission of the transport documents to the banks. Accordingly, the element of dishonest intention was made out: at [34] and [36] to [40].

(7) Bearing in mind the sums involved and the fact that no actual loss was caused, the starting sentences of between 12 months' to 18 months' imprisonment for each individual charge could not be said to have been manifestly excessive. As regards the overall sentence, the starting aggregate sentence of 42 months' imprisonment was consistent with relevant case precedents, and was proportionate with the overall criminality of the present case: at [44] and [45].

(8) Ill health could be a reason for the further downward adjustment in the sentence, and was relevant to sentencing as a ground for the exercise of judicial mercy or as a mitigating factor. In determining which category of relevance an offender's ill health would fall under, the court looked at evidence of the offender's ill health and the ability of the prison authorities to address the offender's health needs: at [46] to [48].

(9) In the present case, the appellant's medical condition was a relevant issue for consideration in sentencing. However, in view of the extent of cheating and sums involved, there were significant countervailing public interest considerations which weighed in favour of punishment, and militated against the exercise of judicial mercy. Nevertheless, it was likely that imprisonment would have a disproportionate impact on the appellant. Hence, the reduction of six months' imprisonment in the global sentence imposed on the appellant was appropriate on the facts: at [49] and [50].

Case(s) referred to

Chew Soo Chun v PP [2016] 2 SLR 78 (folld)

Gan Chai Bee Anne v PP [2019] 4 SLR 838 (refd)

Gunasegeran s/o Pavadaisamy v PP [1997] 2 SLR(R) 946; [1997] 3 SLR 969 (refd)

Lee Kun Hee v State of Uttar Pradesh (2012) 3 SCC 132 (refd)

PP v Ong Eng Teck [2012] SGHC 242 (refd)

Rahj Kamal bin Abdullah v PP [1997] 3 SLR(R) 227; [1998] 1 SLR 447 (refd)

Seaward III Frederick Oliver v PP [1994] 3 SLR(R) 89; [1994] 3 SLR 369 (refd)

Tang Yoke Kheng v Lek Benedict [2005] 3 SLR(R) 263; [2005] 3 SLR 263 (refd)

VDZ v VEA [2020] 2 SLR 858 (folld)

Facts

The appellant was tried and convicted on six charges of cheating under s 420 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”), for having used duplicate copies of the same transport document in order to obtain disbursements of funds from six banks. The appellant was one of two directors and the majority shareholder of Intraluck Pte Ltd (“Intraluck”). Intraluck had trade financing credit facilities with various banks, whereby sums of moneys would be disbursed to the relevant suppliers as indicated by Intraluck upon submission of an application form along with other documents. Sometime in September 2015, Intraluck had submitted six applications for invoice financing to various banks, using transport documents that had already been used to obtain a prior disbursement of funds from another bank. All six applications were approved, and the funds were disbursed, secured by personal guarantees from the appellant. All outstanding payments had since been fully repaid, and no loss was suffered by the various banks involved.

The district judge (“DJ”) found that the appellant was the main decision-maker at Intraluck; that the transport documents provided by Intraluck was an essential requirement for the banks agreeing to disburse the funds; and the appellant had knowledge of or had agreed to the provision of the transport documents. Accordingly, the appellant was convicted on the proceeded charges. Although the appellant was suffering from chronic myelomonocytic leukaemia, the DJ did not consider this an appropriate case for the exercise of judicial mercy in view of the need for deterrence. However, as the DJ considered the appellant's medical condition was a relevant mitigating factor, the appellant's global sentence was reduced by six months to 36 months' imprisonment.

The appellant appealed against his conviction and sentence. In respect of his conviction, the appellant argued that the transport documents were not important to the obtaining of financing, and that in any event the transactions would properly have fallen under a civil claim of misrepresentation and that no criminal sanctions lay against him. Further, the appellant argued that no loss was caused to the various banks, that the underlying transactions were genuine, and that he had not physically attached the relevant transport documents to the applications made to the banks. Finally, the appellant argued that the DJ had erred in placing weight on the various statements he had given to the police. In respect of his sentence, the appellant submitted that this was a case for the court's exercise of judicial mercy.

Legislation referred to

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 22

Penal Code (Cap 224, 2008 Rev Ed) ss 11, 22, 23, 24, 415, 420

Letchamanan Devadason and Ivan Lee Tze Chuen (LegalStandard LLP) for the appellant;

Jordan Li, Ryan LimandJeremy Bin(Attorney-General's Chambers) for the respondent.

20 October 2021

Vincent Hoong J:

1 The appellant was tried and convicted in the court below on six charges of cheating under s 420 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”), for having used duplicate copies of the same transport document in order to obtain disbursements of funds from six banks. He was sentenced to a global sentence of 36 months' imprisonment by the court below. He appealed against his conviction and sentence. After considering the parties' submissions, I dismissed his appeals against conviction and sentence, and now give my reasons.

Facts

The agreed facts

2 At all material times, the appellant was a director of Intraluck Pte Ltd (“Intraluck”), along with one Mdm Neo Poh Choo (“Mdm Neo”). The appellant was also the majority shareholder of Intraluck, whose stated business was the importation and exportation of aluminium and related products.

3 At that time, Intraluck had trade financing credit facilities with various banks, whereby sums of moneys under a pre-agreed credit facility would be disbursed to the relevant suppliers as indicated by Intraluck upon submission of an application form along with other documents. On 9 September 2015, Intraluck had...