Leck Kim Koon v Public Prosecutor

• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 18 May 2022
• Neutral Citation: [2022] SGCA 42
• Citation: [2022] SGCA 42
• Court: Court of Appeal (Singapore)
• Published date: 25 May 2022
• Docket Number: Criminal Motion No 25 of 2021
• Plaintiff Counsel: Sreenivasan Narayanan SC and Selvarajan Balamurugan (K&L Gates Straits Law LLC) (instructed), Letchamanan Devadason and Ivan Lee Tze Chuen (LegalStandard LLP)
• Defendant Counsel: Nicholas Khoo, Jordan Li, Ryan Lim and Ng Shao Yan (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Criminal references,Compensation and costs
• Hearing Date: 18 April 2022,21 February 2022

Andrew Phang Boon Leong JCA (delivering the judgment of the court): Introduction

In the present application, the applicant, Mr Leck Kim Koon (the “Applicant”), seeks leave under s 397(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (the “CPC”) to refer two purported questions of law of public interest (“Question 1” and “Question 2”, respectively) to the Court of Appeal. The Applicant subsequently sought, via an oral application, to amend Question 1. However, part of this application also included what was in substance an application to refer an additional question to this court (the “Additional Question”). We shall refer to these three questions collectively as the “Questions”.

The Questions arise out of the Applicant’s conviction by the District Court on six charges of cheating under s 420 of the Penal Code (Cap 224, 2008 Rev Ed) (the “Penal Code”) for having used duplicate copies of the same transport document to obtain disbursements of funds from six banks (see Public Prosecutor v Leck Kim Koon [2020] SGDC 292 (the “Trial GD”)). He was sentenced to a global sentence of 36 months’ imprisonment. He then appealed against his conviction and sentence and the High Court dismissed both appeals in Leck Kim Koon v Public Prosecutor [2021] SGHC 236 (the “HC GD”).

Background

The facts have been detailed at [2]–[4] of the HC GD and we briefly highlight the salient facts.

At the time of the offences, the Applicant and one Madam Neo Poh Choo (“Mdm Neo”) were directors of Intraluck Pte Ltd (“Intraluck”). Intraluck’s stated business was the importation and exportation of aluminium and related products. The Applicant was the majority shareholder and the remaining shares were held by Mdm Neo and other shareholders.

At that time, Intraluck had trade financing credit facilities with various banks. These credit facilities permitted sums to be disbursed to the relevant suppliers as indicated by Intraluck upon the submission of designated documents, including an application form, to the respective banks. The banks providing the credit facilities included United Overseas Bank Ltd (“UOB”).

On 9 September 2015, Intraluck submitted an application to UOB for clean invoice financing in the sum of US$60,415.51. This was supported by an arrival notice dated 28 August 2015 issued by Orient Overseas Container Line Limited, stating that Intraluck was to receive a shipment of aluminium products from Norinco New Energy Co Ltd under a bill of lading numbered “OOLU2564105080” (“BL080”). This application was approved and the funds were disbursed by UOB.

Subsequently, between 10 and 15 September 2015, Intraluck submitted six other applications (the “Applications”) for invoice financing to other banks for various sums of money using BL080 or an arrival notice referencing that same bill of lading (“AN080”). Three of the Applications were signed by the Applicant, and three were signed by the Applicant and Mdm Neo. All the Applications were approved by the various banks and the amounts applied for were disbursed to the suppliers under the relevant invoices.

It was not disputed that the financing of the invoices was secured by the personal guarantees given by the Applicant, and that all the outstanding payments in relation to the six proceeded charges were fully repaid by Intraluck. In consequence, none of the banks suffered any loss as a result of the Applications.

The purported questions of law of public interest

Four conditions must be met before leave can be granted for a question to be referred to the Court of Appeal (see the decision of this court in Tang Keng Lai v Public Prosecutor [2021] 2 SLR 942 (“Tang Keng Lai”) at [6]): Firstly, the reference to the Court of Appeal can only be made in relation to a criminal matter decided by the High Court in the exercise of its appellate or revisionary jurisdiction. Secondly, the reference must relate to a question of law, and that question of law must be a question of law of public interest. Thirdly, the question of law must have arisen from the case which was before the High Court. Finally, the determination of the question of law by the High Court must have affected the outcome of the case.

In our judgment, the Questions do not satisfy these conditions.

Oral application

In the Notice of Criminal Motion filed by the Applicant, the Questions read as follows:

Question 1:

(a) Should a statement under section 22(4) of the Criminal Procedure Code 2010 (Cap 68) (“CPC”), which is recorded in English where the person giving the statement is speaking in a language other than English, be interpreted and read over to the person verbatim in a language he understands or will an “explanation” of the statement to the person in a language he understands be sufficient for the purpose of section 22(4) of the CPC? (b) Should the Investigating Officer examining a witness in order to record a statement be required to: (a) record the statement word for word rather than in an edited narrative form, and/or (b) arrange for an interpreter to interpret and read over the statement to the person being examined rather than the Investigating Officer being examiner, recorder and interpreter? (c) What weight should be given to a statement, in particular, parts which are alleged to be admissions and used for the purposes of conviction, when the examination by the Investigating Officer is reduced into a written statement in a narrative form, rather than verbatim, and/or not interpreted and read over verbatim by a person other than the examiner?

Question 2:

(a) Where the terms and conditions of a transaction (such as invoice financing of the banks) do not require a document to be furnished (a transport document such as a Bill of Lading) as a precondition for disbursement of monies or handing over of property, can there be deception by the submission of a wrong but unnecessary (transport) document? (b) Whether the element of “dishonestly induces any person to deliver any property” in section 420 of the Penal Code is satisfied when a misrepresentation in a contractual document submitted by a customer without an intention to cause wrongful gain or wrongful loss and the document was not relied upon by and/or did not cause that person allegedly induced to deliver property. (c) Arising from (a) and (b), does the fact that the banks rely only on the customer’s contractual warranties and external independent security to disburse the loans, imply that the banks cannot be said to have been induced by other non-material and non-essential documents, to deliver property within the meaning of section 420 of the Penal Code?

Question 1 concerns purported requirements for a statement recorded pursuant to s 22 of the CPC (“s 22 statement”), while Question 2 concerns the elements of s 420 of the Penal Code.

At the hearing, the Applicant made an oral application to amend Question 1(b) and 1(c) and to, in substance, introduce an additional question (ie, the Additional Question). The amendments are as follows:

The Amended Question 1(b) and (c):

(b) Should the Investigating Officer examining a witness in order to record a statement be required to: (a) record the statement word-for-word rather than in an edited narrative form a question-and-answer format with the follow-on questions being not recorded and the answers recorded in a singular fashion and/or (b) arrange for an interpreter to interpret and read over the statement to the person being examined rather than the Investigating Officer being examiner, recorder and interpreter?

(Arising from the above, an additional question (not framed in motion) is): Should an ancillary hearing under Section 279 CPC be called where the accused challenges the accuracy of his recorded statements, even if he does not challenge the voluntariness of the statement?

(c) What weight should be given to a statement, in particular, parts which are alleged to be admissions and used for the purposes of conviction, when the examination by the Investigating Officer is reduced into a written statement in narrative form in question and answer format with follow-on questions being unrecorded and the answers recorded in a singular fashion, rather than verbatim, and/or not interpreted and read over verbatim by a person other than the examiner?

[deletion marks and underlined text in original]

Since the Additional Question was, in substance, a fresh application under s 397(1) of the CPC, pursuant to s 397(3), that application should have been made within one month of the determination of the matter in the court below, ie, one month from 20 October 2021. Hence, the application for leave to refer the Additional Question was filed out of time. Nevertheless, s 397(3) also empowers this court to grant an extension of time.

The Prosecution did not object to the oral application. We therefore allowed the amendments to Question 1(b) and 1(c) and granted an extension of time for the Applicant to apply for leave to refer the Additional Question to this court.

We now turn to examine the merits of the present application.

Question 1

First, we must analyse Question 1 as a whole.

To begin with, the plain language of s 22 of the CPC does not contain requirements for: (a) Investigating Officers (“IOs”) to record a s 22 statement word for word; and (b) independent interpreters to be present during the taking of s 22 statements. In relation to the interpretation point, s 22(4)(b) simply provides that if the witness does not understand English, the s 22 statement must be interpreted for him in a language that he understands. In other words, the statement can be translated to the witness by persons apart from interpreters.

Next, Question 1 essentially concerns compliance with purported procedural requirements of taking s 22 statements according to the Applicant. The statutory...