Lee Foo Choong Kelvin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 03 September 1999
• Neutral Citation: [1999] SGHC 233
• Docket Number: Magistrate's Appeal No 291 of 1998
• Date: 03 September 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Goh Phai Cheng SC and Lim Tse Haw (Harry Elias & Partners)
• Citation: [1999] SGHC 233
• Defendant Counsel: Roy Neighbour and Jeanne Lee (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Subject Matter: Advance fee fraud,Criminal Law,Cheating,s 420 Penal Code (Cap 224),Property,Sentencing,Offences,Whether sentence manifestly inadequate,Criminal Procedure and Sentencing

: In the court below, the appellant was charged under s 420 of the Penal Code (Cap 224) for cheating as follows:

You, Lee Foo Choong Kelvin (M/46 Years) NRIC No S0163359G are charged that you, between March and October 1996, in Singapore, cheated one Cheong Khoon Yoong Philip (`Philip`) when you deceived the said Philip:

- by your dishonest concealment of a Basic Checklist of Required Exhibits containing onerous conditions which purportedly had to be fulfilled to secure the release of funds by or arranged by a purported American Funder for the development of three projects, thus causing Philip to believe that he only had to pay commitment fees amounting to a total of US$300,000 to secure funding for the development of the said projects; and

- by representing to Philip that sums amounting to a total of US$300,000 had to be paid through you in order to secure the release of funds by or arranged by a purported American Funder for the development of three projects and that the said sums comprising US$100,000 for each project or any part thereof would be refunded to Philip regardless of the outcome of the loan applications, when you had no intention of refunding or arranging for the refund of the said sums of US$100,000 for each project or any part thereof,

and by your deception through one or both of the above means, you dishonestly induced the said Philip to deliver a total sum of US$300,000 to you which Philip would not have done so had he not been so deceived, and you have thereby committed an offence punishable under s 420 of the Penal Code (Cap 224).

Section 420 of the Penal Code states that:

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person ..., shall be punished with imprisonment for a term which may extend to 7 years, and shall also be liable to fine.

Cheating is defined in s 415 of the Penal Code as follows:

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, ... is said to `cheat`.

Explanation 1 - A dishonest concealment of facts is a deception within the meaning of this section.

As for the question of dishonesty, s 24 of the Penal Code provides that:

Whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, is said to do that thing dishonestly.

After the trial, the appellant was convicted of the offence and was sentenced to 24 months` imprisonment. He was also ordered to pay the prosecution`s costs of $20,000, in default of which payment he would have to serve another two months` imprisonment. He appealed against the conviction.

After hearing arguments from both parties, I dismissed the appeal. I further enhanced the sentence to 36 months` imprisonment. I now give my reasons.

Facts

Background facts

I begin by setting out the background facts to the case, which were not in dispute.

The appellant is a Singaporean businessman, who since adulthood has dabbled in a number of different businesses, including construction and jewellery. For the past ten years, he has described himself as an `international finance co-ordinator`, proffering a number of business cards to that effect. The history of this began in 1985, when he moved to the USA to `co-ordinate business`, trying, he said, `to bring people together from East and West to make business venture` [sic]. He returned to Singapore in or about 1992.

While he was in the USA, he met an American businessman named Carl Lane (`Carl`), who represented a US finance company based in Atlanta, Georgia called Global Commerce Company NA (`GCC`). GCC apparently had some money to invest in the Far East and the appellant was subsequently appointed as a `Finance Broker` for them. His task as a broker was to persuade businessmen in need of finance to make `loan applications` to GCC. If the loan applications were successful, he would receive a commission of 1% of the amount actually funded by GCC.

On 30 September 1995, after the appellant had returned to Singapore, Carl sent him a document entitled `Summary of Global Commerce Co`s Loan Program and Procedures`. This document set out in summary the process of obtaining a `loan` from GCC. Two special features of the loan procedure were of relevance to this case. First, at the stage of applying for a loan, the applicant would have to provide a `commitment fee` of US$65,000, together with US$15,000 for GCC`s expenses (US$80,000 in total). The US$65,000 would be refunded when the loan application was approved, which was to be within 150 days of the loan application date. If the loan application was not approved, the commitment fee would also be returned, but only if the non-approval of the loan was for a reason `other than the wrongful actions of the applicant`.

The second important feature of the loan application process related to a further document appended to the summary of GCC`s loan procedure called the `Basic Checklist of Required Exhibits`. This was essentially a list of documents required from the loan applicant running to some one and a half pages long, some of the documents being very onerous and expensive to obtain. For example, one of the required items was: `Complete plans and specifications signed by the architect and engineer, including: Plot plan, property location map, survey, Architect`s rendering and summary of other pertinent data`. The appellant said in evidence that when he received the loan application summary document from Carl, he `merely perused it very briefly` and did not notice the Basic Checklist.

Some time in 1995, the appellant met one Mark Yu (`Mark`), a Singaporean businessman who represented a Chinese property development consortium called `Paciworld`. They became friends. In 1996, Paciworld wanted to develop three property projects in China, namely, the `Seaview Hotel Project` in Haikou, the `Golden City Project` in Shanghai, and the `Stone Sparrow Golf Resort` in Qingdao. Mark was looking for financing for these projects in Singapore. The appellant suggested to Mark that he should use the appellant`s financiers - GCC. He explained the loan application procedure to Mark, who was very interested. However, Paciworld did not want to pay the commitment fee or the expenses for the loan application. Together, Mark and the appellant started looking for someone to front the commitment fee and expenses. Mark subsequently introduced the complainant, Philip Cheong (`Philip`), to the appellant. Philip, an electrical contractor by trade, was interested in investing some money in property projects.

The appellant`s conduct which formed the basis of the charge

The appellant`s conduct towards Philip formed the basis of the charge against him. At the trial, the prosecution submitted that the facts typified a classic example of `advance fee fraud`. In essence, the prosecution`s case was that, through a series of meetings and communications between the parties, the appellant dishonestly persuaded Philip to pay to him personally the equivalent of US$300,000 in `commitment fees` for three GCC loan applications. These payments were made in three separate instalments. First, on 1 July 1996, Philip gave the appellant a cheque for S$140,000 (the equivalent of US$100,000), which was meant for the Paciworld Haikou Seaview Hotel project. After this payment was made, the appellant exerted pressure on Philip to pay commitment fees in relation to the other two Paciworld projects. Philip eventually capitulated and on 19 September 1996 gave the appellant a Standard Chartered Bank bank draft for US$70,000. In addition, on 28 October 1996, he gave the appellant a further cheque for S$181,000 being the balance of the US$300,000 in commitment fees due in respect of the three projects.

The prosecution alleged that, in the course of their numerous dealings, the appellant made several material misrepresentations to Philip in relation to the legal status of the commitment fees. In particular, he told Philip that the commitment fees were fully refundable, whether or not the loan applications were successful, without any exceptions. The appellant made these statements knowing that they were untrue and that Philip would rely on them. Having succeeded in persuading Philip to pay him the commitment fees, the appellant deposited the money into his own bank account, where it was set-off against his substantial overdraft. He never remitted any money to GCC.

Next, the appellant induced Philip to sign certain legal documents, including three GCC `loan applications`, thus making Philip feel that he was now responsible for obtaining the funding required for the three Paciworld projects. It was only after these documents had been signed that the appellant told Philip that in fact only 65% of the...