Leonard Lawrence Maria Soosay v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Teoh Ai Lin
• Judgment Date: 24 September 2001
• Neutral Citation: [2001] SGDC 301
• Published date: 19 September 2003
• Court: District Court (Singapore)

Judgment:

GROUNDS OF DECISION

1. The accused claimed trial to a charge of intentionally fabricating false evidence to be used in judicial proceedings

DAC 350/2001

You,

Leonard Lawrence Maria Soosay
Nric : S1753901-I
No 9 Terang Bulan Avenue ( 455533)

are charged that you, sometime in May 2000 in Singapore, did intentionally fabricate false evidence to be used in the proceedings taken by law before a public servant, namely the Honourable District Court Judge John Ng regarding one Syed Alwi Bin Syed Abdul stating, inter alia

"This is to confirm that Syed Alwie has returned in full, the amount of $5600 to The Mastering Suite Pte Ltd.... I humbly ask that the courts be lenient with his sentence".

intending to cause the Honourable District Judge John Ng to entertain the erroneous opinion that the said Syed Alwi Bin Syed Abdul had made full restitution, for the purpose of sentencing, and you have thereby committed an offence under Section 193 of the Penal Code, Chapter 224.

2. I convicted the accused and sentenced him to 6 months jail. He appeals against conviction and sentence.

Background

3. The accused is a sound producer and engineer. Sometime around mid-1998, the accused and his friend PW 3 Syed Alwi Bin Syed Abdul ( "Alwi" ) worked at The Mastering Suite, a sound recording studio.

4. On 30 May 2000 Alwi was convicted on 4 counts of forging cheques belonging to The Mastering Suite and sentenced to 3 months in jail. During Alwi's sentencing, a letter stating that Alwi had made full restitution of $5600 to The Mastering Suite was tendered in court ( "the letter" ).

5. It was not in dispute that it was the accused who had written the letter knowing that it would be used in court, and that at the time of Alwi's sentencing restitution had not been made to The Mastering Suite. Alwi only made restitution on 1 September 2000 after he was released from prison. Alwi was subsequently charged with abetting the accused to fabricate false evidence and he had pleaded guilty to the charge at the time of he gave evidence at the accused's trial.

The Prosecution's Case

6. The prosecution's case was that the accused had intentionally fabricated false evidence by writing and giving the letter to Alwi relying only on Alwi's promise to pay back the $5600 when he could. There was no agreement that Alwi would pay the monies in exchange for the letter nor any expectation that there would be immediate repayment of the sums by Alwi.

The Defence

7. The defence was that the accused and Alwi had agreed that the letter would be given to Alwi in exchange for the monies, and the accused had expected to receive the monies on the day Alwi came to collect the letter. However Alwi collected the letter in a rush and left without paying the accused.

The Prosecution Evidence

8. The prosecution called 4 witnesses. The main prosecution witness was PW 3 Alwi. The prosecution also used the accused's statement dated 17 July 2000 ( Exh P 7 ) to impeach the accuseds credit and as evidence of facts stated.

The accuseds involvement in The Mastering Suite and Alwi's theft of the company cheque book

9. PW 1 Mr Davey Khoo Beng Aun ( " Davey Khoo" ) was the director who set up The Mastering Suite and its sole shareholder. Sometime around mid-1998 he entered into an agreement with the accused and a Mr Brian Colaco ( Mr Colaco" ) for the take-over of the business of The Mastering Suite. The takeover would take place at an agreed future date, in the meantime the accused and Mr Colaco would channel business into the company to keep it commercially viable. After the agreement was made Davey Khoo stepped down as a director and Mr Colaco was appointed director. Davey Khoo then left the day to day operations of the company to the other existing director Mr Kang.

10. Alwi was introduced by the accused to the company. Alwi and the accused were friends. Davey Khoo regarded Alwi as an extra hand to help out with the business.

11. Some time in 1999 Davey Khoo became aware through the company's bankers that the company loans were not being serviced. He called Mr Kang who informed him that the company cheque book was missing.

Alwi's alleged restitution of the monies taken

12. One day Davey Khoo received a call from Mr Colaco from Thailand. Mr Colaco informed him that Alwi had been arrested for the theft of the company cheque book.

13. In another conversation with Mr Colaco, Davey Khoo was informed that Alwi had gone to jail and had repaid the sums taken, and that a letter stating that Alwi had repaid the monies had been written.

14. Davey Khoo called Mr Kang who told him that no monies had been returned to The Mastering Suite. Davey Khoo was angry and thought that they had all colluded to cheat the company.

15. He then called PW 2, the investigating officer Staff Sergeant Sabil Juni ( "IO Sabil" ) to inquire about the payment of the restitution. IO Sabil was then also under the impression that restitution had been made.

16. IO Sabil called up the accused sometime in June 2000. In the first telephone call, he asked the accused whether Alwi had repaid the monies and the accused said yes. In a second phone call to the accused sometime in July 2000, the accused admitted that he had not received the monies from Alwi but he had permission from Mr Colaco to write the letter.

17. IO Sabil also called Alwi who had then just been released from prison. Alwi confirmed that he had not repaid the sums taken but he intended to repay.

18. On 1 September 2000 Alwi went to see IO Sabil at the police station. He came with the accused. The sums were repaid by Alwi to Davey Khoo who came to collect the monies.

Alwis request for the letter

19. PW 3 Alwi said that after he was charged in court with the forgery offences he told his lawyer PW 4 Mr Abdul Jalil Tahir ( Mr "Jalil" ) that he intended to pay back the monies. Mr Jalil advised him to get a letter or some documentation stating that he had repaid the monies.

20. Alwi then contacted the accused. He regarded the accused as a director and he felt closer to the accused than Mr Kang. He told the accused that he intended to repay the sums and needed a letter stating that he had paid back. They did not discuss when repayment would be made. The accused told him he had to check with Mr Colaco to get permission first.

Collection of the letter

21. The accused called Alwi within a week of Alwi's request for the letter. This was about 1 to 2 days before Alwi's sentencing on 30 May. The accused said Mr Colaco had given permission for the letter and the letter was ready for collection. Again there was no discussion in this conversation as to when payment had to be made or that the letter would only be given in return for payment.

22. Alwi called the accused from the cab on his way to the accused's home. It was about 10 am in the morning. There was no discussion of when payment had to be made in this conversation either.

23. When Alwi arrived at the accused's home he called the accused. They greeted each other at the gate and Alwi took the letter from the accused and left in the waiting cab. Alwi was in fact carrying the $5600 in cash with him that morning and he had intended to pay the accused although he did not tell the accused that. In his rush to go to his lawyer's office Alwi did not pay the accused. The accused did not at any time ask for payment while they were at the gate nor when Alwi was heading back into the cab.

24. The accused did not call Alwi to ask for payment. Alwi called the accused about a day later to tell the accused that he didn't have enough money as he had borrowed monies from friends to pay his legal fees, and he needed more time to raise the balance of the restitution. Alwi promised the accused that he would pay up as soon as possible, and the accused said okay. Alwi did not tell the accused that he was to be sentenced on 30 May.

25. At no time did the accused say nor was it the understanding or arrangement between them that the letter would only be given in exchange for payment.

26. PW 4 Mr Jalil, Alwi's former counsel, confirmed that Alwi handed the letter over to him in his office 1-2 days before the sentencing. There was no prior appointment but Mr Jalil happened to be in his office that day. Mr Jalil had prepared the mitigation plea at least a day before Alwi's sentencing which was scheduled for 9.30 am on 30 May 2000. Mr Jalil said that if the letter had not been tendered, he would not have stated in the written mitigation that restitution had been made.

The Accused's Evidence

27. The accused said that Alwi first called him up sometime in March or April 2000 to say that he wanted to repay the sums taken. Alwi then called him again one morning when the accused was still sleeping. Alwi told him he had saved up enough money to pay back what he had taken and wanted a letter or receipt stating that he had paid back. The accused told Alwi that he had to check with Mr Colaco first and asked Alwi to call him back in a while.

28. The accused called Mr Colaco, who said to go ahead but to ensure that Alwi paid the money before the letter was given to him.

29. Alwi then called the accused again. The accused told Alwi he could have the letter provided he paid up, and asked Alwi for a cheque payable to the company to prove that the sums had been paid to the company. Alwi agreed. The accused then typed out the letter on his computer at home.

30. Later that same morning, Alwi called to say he was on his way. Although Alwi did not say that the letter would be used in court, the accused assumed this to be so. Alwi called again when he arrived at the accused's home.

31. Alwi came out of the cab to meet him at the front gate and they greeted each other. The accused's front gate had a combination chain padlock and he was opening the gate and the padlock when Alwi took the letter from his hand. Alwi glanced at it and went back into the cab, saying that he would call the accused. The accused thought that Alwi was...