Lee Siew Eng Helen v Public Prosecutor

JudgeYong Pung How CJ
Judgment Date02 August 2005
Neutral Citation[2005] SGHC 141
Docket NumberMagistrate's Appeal No 178 of 2004
Date02 August 2005
Published date10 August 2005
Plaintiff CounselPeter Yap (Peter Yap) and Loo Choon Hiaw (Loo and Chong)
Citation[2005] SGHC 141
Defendant CounselApril Phang (Deputy Public Prosecutor)
CourtHigh Court (Singapore)
Subject MatterCriminal Law,Sentencing,Whether sentence of six months' imprisonment manifestly excessive where appellant having no personal gain from embezzlement offence,Offences,Appeal against conviction,Criminal Procedure and Sentencing,Whether method of calculating amount embezzled illogical,Whether method taking into account all relevant factors,Whether reasonable doubt existing as to whether offence under s 406 Penal Code made out on aggregate basis,Appeals,Criminal breach of trust,Section 406 Penal Code (Cap 224, 1985 Rev Ed),Property

2 August 2005

Yong Pung How CJ:

1 This was an appeal by one Lee Siew Eng Helen (“the appellant”) against the decision of District Judge Aedit Abdullah in District Arrest Cases Nos 14768 of 2004 and 14769 of 2004 convicting her of two counts of criminal breach of trust under s 406 of the Penal Code (Cap 224, 1998 Rev Ed) (“the PC”). She also appealed against the sentence on the ground that it was manifestly excessive.

The background to the appeal

2 The appellant was the general manager of Anthola Insurance Broker (S) Pte Ltd (“Anthola”). She saw to the daily operations of the business. Under the Insurance Intermediaries Act (Cap 142A, 2000 Rev Ed) (“the Act”), Anthola was required to set up an Insurance Broking Premium Account (“IBPA”). The account was strictly regulated. Withdrawals from the account could only be made for the purposes authorised by s 22(3) of the Act. The appellant was alleged to have breached s 22 of the Act by knowingly instructing and authorising the transfer of moneys from the IBPA for purposes other than those permitted.

3 The appellant was initially charged with four counts of criminal breach of trust under s 408 of the PC. The first charge was for embezzlement of $19,000 in 2002, the second for $24,028 in 2001, the third for $134,296 in 2000, and the fourth for $219,000 in 1999. This last charge was withdrawn and a discharge amounting to an acquittal was recorded. At the end of the Prosecution’s case, the district judge decided that there was a prima facie case to be brought under s 406 instead of s 408 of the PC. The charges were amended accordingly.

4 It was established that the moneys the appellant authorised for withdrawal from the IBPA were used largely for payment of various office expenses. In particular, premiums meant for various insurers were not paid to them, even though the persons insured had already paid in to the account.

5 When the appellant’s defence was called, she declined to testify on her own behalf. She also declined to call any witnesses. She insisted that there was no case to answer. The trial was therefore premised entirely on the Prosecution’s evidence.

6 The district judge rejected the Defence’s argument that the Prosecution had to show misappropriation through specific withdrawals being in excess of entitlements. In doing so, he regarded s 22 of the Act as contravened every time a withdrawal was made for an unauthorised purpose. He further drew an adverse inference from the appellant’s silence in the face of the Prosecution’s case – that the withdrawals were indeed in excess of entitlements.

7 He decided (see [2005] SGDC 84 at [95]) that “requiring that misappropriation be established only by a particular withdrawal being in excess of a particular entitlement would create too much of an opportunity for funds to be used in disregard of the direction of law”. He thus considered it sufficient for a charge under s 406 of the PC to be made out on an aggregate basis.

8 The district judge accepted the Prosecution’s method of calculating the amount of money embezzled. In essence, this was done by taking the amount of money withdrawn from the IBPA, and subtracting from this the amount of commission accrued to Anthola in each relevant year. According to this method, the amount in excess of Anthola’s accrued commission was the minimum amount of money embezzled.

9 The appellant had withdrawn from the IBPA a total of $532,000 and $313,000 for the years 2000 and 2001 respectively. The accrued commissions were $397,704 and $288,972 for 2000 and 2001 respectively. Therefore in applying this calculus, the appellant was shown to have embezzled the sums of $134,296 in 2000, and $24,028 in 2001.

10 Due primarily to a lack of detailed and accurate accounts, the district judge opined that a conviction on the first charge would be unsafe. The appellant was thus acquitted on this basis. There was nevertheless enough evidence to sustain a conviction on the remaining two charges. For the second charge, the sentence imposed was three months’ imprisonment, and a $10,000 fine or two months’ imprisonment in default. The appellant was sentenced to six months’ imprisonment, and a $10,000 fine or two months’ imprisonment in default, for the third charge. As the sentences were ordered to run concurrently, the total sentence was six months’ imprisonment, and $20,000 in fines or four months’ imprisonment in default. At the time of appeal, the fines had not been paid.

The issues regarding the appeal on conviction

11 The appellant proceeded on three broad grounds of appeal. Firstly, that linking the total amount withdrawn each year to the commission earned that same year was a misinterpretation of the accounts. Secondly, that the district judge erred in disregarding the possibility of commissions being collected at some other time. Lastly, that the calculation did not include “management fees” – moneys which belonged to the company.

12 According to the appellant, the moneys in the IBPA represent actual premiums and commission collected. The figures used by the Prosecution were derived from Anthola’s balance sheet. These were “booked” figures. There were two main reasons why the actual and “booked” figures were not identical. First, clients might not pay on time. Second, Anthola had a credit policy of either 30, 60 or 90 days with the insurance company depending on the terms of each individual policy.

13 The appellant further alleged that the district judge failed to consider the evidence of PW4 (Anthola’s auditor) suggesting the possibility of commissions being collected in some other time, rather than in the year it was booked. Taking one extreme, if old debtors with high-value accumulated premiums suddenly paid and if Anthola had extremely generous credit policies with the insurance companies, there was no reason why the actual commissions might not be higher than the “booked” commissions of any given year. Therefore the general proposition that the calculus adopted by the Prosecution would lead in all cases to the lowest possible amount embezzled, was theoretically incorrect.

14 Nevertheless, and with respect, the appellant’s assertion that the correlation between the premiums paid into the IBPA and the premiums booked was “fundamentally erroneous” or “a misinterpretation of the accounts” missed the point. Plainly the two figures might or might not be identical. The district judge had, in his grounds of decision, accounted for factors which contributed to the discrepancies between the two amounts. He observed (at [55]), for instance, that in 2001 “$288,972 was booked as commission, but the commission actually received was less”. He attributed the differences to the findings that:

(a) The amount of premiums collected was less than that which was booked – Anthola had failed to collect premiums from clients and had a substantial trade debt. This had the effect of greatly reducing the amount...

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1 cases
  • Public Prosecutor v Lam Leng Hung and other appeals
    • Singapore
    • High Court (Singapore)
    • 7 April 2017
    ...offender did not benefit herself, and used the funds for the company” (at [115]). On appeal, in Lee Siew Eng Helen v Public Prosecutor [2005] 4 SLR(R) 53 (“Helen Lee”), the High Court upheld the sentence imposed. Yong CJ considered that the sentence was not manifestly excessive taking into ......

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