Lee Siew Eng Helen v Public Prosecutor

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Yong Pung How CJ
• Judgment Date: 02 August 2005
• Neutral Citation: [2005] SGHC 141
• Citation: [2005] SGHC 141
• Defendant Counsel: April Phang (Deputy Public Prosecutor)
• Plaintiff Counsel: Peter Yap (Peter Yap) and Loo Choon Hiaw (Loo and Chong)
• Published date: 10 August 2005
• Docket Number: Magistrate's Appeal No 178 of 2004
• Date: 02 August 2005
• Subject Matter: Criminal 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 This last charge was withdrawn and a discharge amounting to an acquittal was recorded.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...