Lee Yuen Hong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 31 March 2000
• Neutral Citation: [2000] SGHC 50
• Docket Number: Magistrate's Appeal No 245 of 1999
• Date: 31 March 2000
• Published date: 19 September 2003
• Year: 2000
• Plaintiff Counsel: Ang Sin Teck (Raja Loo & Chandra)
• Citation: [2000] SGHC 50
• Defendant Counsel: Sellakumaran Sellamuthoo (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Abetment,Whether evidence should be admitted in interest of justice,Abetment by conspiracy,Whether temporary misappropriation of employer's funds constitutes dishonesty on employee's part,Words and Phrases,s 147(3) & (5) Evidence Act (Cap 97),Adducing additional evidence,Criminal Law,Whether finding of impeachment justified in light of insignificant nature of discrepancies,When intervention justifiable,"Dishonest",Admissibility of evidence,Appeal,Courts and Jurisdiction,Previous inconsistent statement,Whether receipt of funds belonging to employer constituted conspiracy,ss 24, 107(b), 109, 403 & 408 Penal Code (Cap 224),Evidence,Witnesses,Appellate court,Intervention with findings of fact of trial judge,Whether lack of contemporaneity affects weight to be attached to previous inconsistent statement,Meaning of dishonesty,Criminal breach of trust as servant,Impeachment,Criminal Procedure and Sentencing,Use as evidence of facts stated,Credit of witness,Whether evidence available at time of trial,Jurisdiction

: This was an appeal against the decision of district judge A Rahim Jalil. The trial judge found the appellant guilty of engaging in a conspiracy with one Don Wee to commit the offence of criminal breach of trust by a clerk or servant in respect of a sum of $3,000. The appellant was convicted and sentenced to ten weeks` imprisonment. The appellant filed a petition of appeal on 26 November 1999 against the conviction and sentence. On 3 February 2000, the appellant filed a notice of motion for leave to adduce fresh evidence. The charge against the appellant is set out below:

You Lee Yuen Hong NRIC No S 7122905Z are charged that you sometime on or about 16 February 1996, in Singapore, abetted one Wee Hian Thong, employed by United B&B Italia (Singapore) Pte Ltd and in such capacity entrusted with $3,000 belonging to the said company, to commit criminal breach of trust as a servant, in that you engaged in a conspiracy with Wee Hian Thong to dishonestly misappropriate the said $3,000, and in order to the doing of that thing, on the same day, in Singapore, you received from Wee Hian Thong the said $3,000, and you have thereby committed an offence punishable under s 408 read with s 109 of the Penal Code (Cap 224).

The background

The appellant, Lee Yuen Hong (also known as `Corrine`), and Don Wee Hian Thong (`Don Wee`) were employees of United B&B Italia (Singapore) Pte Ltd (`B&B`). The appellant was a sales executive and Don Wee was her supervisor and the sales marketing manager.

The appellant had sold some furniture to a customer, one Albert Hong. On 16 February 1996, the appellant, Don Wee and another sales and marketing manager by the name of Jeffrey Chiang, went to 48A Chancery Lane to collect the balance of the sale price of the furniture sold to Albert Hong. At 48A Chancery Lane, the appellant was given $35,000 in cash by one Peter Lim who made the payment on behalf of Albert Hong. After receiving the money, the appellant handed the $35,000 to Don Wee. As the sales marketing manager and the appellant`s supervisor, Don Wee was responsible for returning the money to B&B.

After receiving the $35,000, the appellant, Don Wee and Jeffrey Chiang went to a mobile telephone shop where the appellant bought a mobile telephone for $1,287.50. The appellant paid for the mobile telephone with cash that she got from Don Wee. Don Wee subsequently admitted that the cash that he handed over to the appellant was from the $35,000 given to the appellant by Peter Lim earlier in the day. According to the appellant, the amount that she got from Don Wee was $2,000whereas Don Wee maintained that he handed over a sum of $3,000 to the appellant.

Don Wee did not bank in the $35,000 or any part thereof on 17 February 1996, which was the next working day. It was a half working day because of the upcoming Chinese New Year celebrations. As a result of the Chinese New Year celebrations, B&B was in fact closed for a week commencing 19 February 1996, and business only resumed on 26 February 1996. Don Wee had told the appellant on 16 February 1996 that he would bank in a full $35,000 when he returned to work on 26 February 1996. When the appellant checked on 26 February 1996 if her client, Albert Hong, had paid for the furniture, she was told that payment had not been made. This indicated to her that Don Wee had not yet returned the $35,000 to B&B. The balance of the $35,000 that was kept by Don Wee over the Chinese New Year period was in fact used by him for his own purposes. Consequently, the sum of $35,000 was never returned by him to B&B.

Don Wee was subsequently charged with and pleaded guilty to committing criminal breach of trust as a servant in respect of the sum of $35,000. He was sentenced to one year`s imprisonment.

As regards the cash that Don Wee had given the appellant, the appellant claimed that she had repaid the money to Don Wee. After purchasing the mobile phone, the appellant told her boyfriend, Clifford Tan, that she had borrowed over a thousand dollars from Don Wee to purchase the mobile phone. Clifford Tan was displeased at this because he felt that it was inauspicious to be indebted to another person before Chinese New Year. Clifford Tan then wrote a cash cheque for $2,000 and gave it to the appellant so that she could repay Don Wee. The cash cheque was dated 28 February 1996. However, Don Wee denied receiving any part of the $3,000 he allegedly gave the appellant either from the appellant herself or from any other person.

It was against this factual background that the appellant was charged with abetting the commission of criminal breach of trust by a servant in respect of $3,000.

The prosecution`s case

The prosecution contended that the actus reus of the offence had been made out. Don Wee had admitted that the $3,000 that he had given to the appellant originated from the $35,000 that Peter Lim had paid to the appellant on 16 February 1996. As a servant of B&B, and being entrusted with this money in his capacity as such, Don Wee had misappropriated the $3,000 in question.

With regards to the mens rea of the offence, the prosecution had to establish that both the appellant and Don Wee had been dishonest. Whilst the appellant and Don Wee had agreed that the appellant would use part of the cash received from Peter Lim to purchase a mobile phone, this agreement would only have amounted to a conspiracy to commit criminal breach of trust as a servant if both Don Wee and the appellant had been dishonest at the time.

The prosecution argued in their closing submissions that Don Wee had been dishonest. Don Wee had testified that he did not have the intention to deprive B&B of $3,000. According to the prosecution, Don Wee`s statement could not be read in isolation. Read in its proper context, Don Wee meant that he intended to eventually return the entire sum of $35,000 to B&B at the time he gave $3,000 to the appellant. The relevant parts of the cross examination of Don Wee (PW3) by defence counsel is set out below:

Q: ... If you say you gave her $3,000, the understanding at that time was that you would give her $3,000 first and she would return the $3,000 to you after the Chinese New Year break?

A: That was the assumed understanding because she knew that the money came from the $35,000, and she knew I would be banking in the $35,000 on the next working day which was after the Chinese New Year.

Q: So if that was the case, it was the understanding that when $3,000 was given to the accused, there was no aim or intention to deprive B&B of $3,000 because ultimately the $3,000 would be returned to you and you would bank in the $35,000?

A: Yes ... that was the understanding that she would return the money after Chinese New Year.

Q: You agree there was no intention to deprive B&B of the $3,000 you gave the accused?

A: I don`t understand `deprive`.

Q: You gave $3,0000 to her. There was no intention on your part or on the part of the accused to return B&B $32,000, the intention was to return $35,000?

A: Yes.

Q: So when you gave $3,000 to Corrine Lee [the appellant] you honestly intended that she return you $3,000 so that you could return the entire sum of $35,000 to B&B?

A: Yes.

The prosecution submitted that despite his evidence, Don Wee had the intention to cause temporary wrongful loss to B&B at the time he handed over $3,000 to the appellant . This was dishonest by virtue of s 24 of the Penal Code which states:

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.

The prosecution submitted that the appellant had also been dishonest on the basis of the following facts. She had conceded in the course of cross examination that the $35,000 received from Peter Lim belonged to B&B even when it was in Don Wee`s possession. She also knew that the money she had received from Don Wee came from the $35,000 in question. She knew that the money she had received from Don Wee was not meant to be a personal loan to her. She also knew of B&B`s policy not to allow sales personnel to use money collected from clients for personal use. In spite of her knowledge, she accepted the money from Don Wee and used it to purchase a mobile phone for herself. She did not expressly state when she would return the money to Don Wee, and she also kept the balance of the money after purchasing the mobile phone. She also did not reveal the fact of the purchase of the mobile phone to B&B after she discovered that Don Wee had not banked in the $35,000 after the Chinese New Year break. She explained that she did not want to back stab Don Wee, but this only showed that she knew it was wrong to receive the $3,000. She was clearly afraid of telling the truth regarding the $35,000 since this would expose her receipt and use of the $3,000. The prosecution accordingly submitted that the appellant had been dishonest in her treatment of the $3,000 in question.

In any event, the $3,000 was never returned to Don Wee. The prosecution urged the court to draw an adverse inference from the fact that the defence did not call the relevant bank officer who could tell the court into whose account the cash cheque went and from the fact that the defence did not produce the original cash cheque so that Don Wee could be cross examined on whether the alleged handwriting behind the cheque was his, as stated by Clifford Tan.

The prosecution urged the court to prefer Don Wee`s testimony over the appellant`s account of the relevant events. Don Wee was an honest witness who had no reason to falsely incriminate the appellant. He had pleaded guilty to the charge of criminal breach of trust in respect of the $35,000 and was serving a term of imprisonment for that offence. On the other hand, the appellant was an unreliable witness. There were material inconsistencies between her long statement and her testimony in court. She said...