Li Weiming and other matters v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 27 March 2013
• Neutral Citation: [2013] SGHC 69
• Date: 27 March 2013
• Docket Number: Criminal Revision Nos 24, 25 and 26 of 2012
• Published date: 11 April 2013
• Plaintiff Counsel: Lok Vi Ming SC, Kang Yu Hsien Derek and Tang Jin Sheng (Rodyk & Davidson LLP)
• Hearing Date: 23 January 2013
• Defendant Counsel: Alan Loh and Dennis Tan (Attorney-General's Chambers),Tay Wei Loong Julian, Marcus Foong and Jacklyn Chan (Lee & Lee),Lai Yew Fai and Alec Tan (Rajah & Tann LLP)
• Court: High Court (Singapore)
• Subject Matter: CRIMINAL PROCEDURE AND SENTENCING

Chao Hick Tin JA: Introduction

These three criminal revision applications were filed pursuant to s 404 of the Criminal Procedure Code 2010 (Act 15 of 2010) (“CPC 2010”) by three petitioners seeking the revision of orders made by the District Court on 23 November 2012. The underlying legal dispute revolved around the Prosecution’s discovery obligations under the Criminal Case Disclosure Conference (“CCDC”) regime introduced by the CPC 2010. In particular, it pertained to the extent to which the summary of facts in the disclosed Case for the Prosecution had to contain particulars “in support of” the charge.

The parties to the dispute

The 1st petitioner, Mr Li Weiming (alias Stephen), was an employee of ZTE Corporation (“ZTE”) in 2006 and was ZTE’s chief representative for Brunei, Papua New Guinea and the South Pacific Islands from 2010.¹ ZTE is headquartered in Shenzhen, the People’s Republic of China, and is a large vendor of information technology (“IT”) and telecommunications equipment.² Sometime in 2010, ZTE was awarded a project worth US$35m as the main contractor for an ambitious community college project in Papua New Guinea. The project envisioned the creation of a virtual university network anchored by 89 community colleges throughout the country.³ All three petitioners were involved in the discussions which led to the award of the project to ZTE.

The 2nd petitioner, Ms Lim Ai Wah, is the director of Questzone Offshore Pte Ltd (“Questzone”), a British Virgin Islands company of which she is the sole member apart from her sister, Ms Lim Swee Kheng, who is a nominal director.⁴ Questzone was allegedly set up for the sole purpose of receiving commission payments from ZTE arising from the award of the community college project in Papua New Guinea.⁵

The 3rd petitioner, Mr Thomas Philip Doehrman, is Ms Lim Ai Wah’s husband. He assists the Papua New Guinea government under a trust for the community college project (“the ITE trust”).⁶ Together with the 2nd petitioner, he is also a director of Quest Petroleum (Singapore) Pte Ltd (“Quest Petroleum”), which provides consultancy, natural resource, IT and mining services to foreign companies.⁷ Quest Petroleum was created in the late 1990s when the 3rd petitioner began to conduct business in Papua New Guinea.⁸

The charges

Each of the petitioners faces six charges. These consist of a single charge under s 477A read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”), and five charges under s 47(1)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“CDSA”).

The charge under s 477A of the Penal Code (“s 477A PC”) relates to an alleged conspiracy between the petitioners to issue an invoice dated 15 July 2010 that “falsely purported to seek payment to Questzone as a sub-contractor under a fictitious sub-contract”.⁹ This invoice was issued by Questzone to ZTE. The CDSA charges pertain to five separate payments made by Questzone to the petitioners out of the proceeds gained from the s 477A PC offence.

The prelude to the present applications

The Case for the Prosecution in respect of the charges brought against each of the petitioners was filed and served on 13 September 2012. Each Case for the Prosecution contained the relevant charges, a list of witnesses, a list of exhibits, statements from the petitioner charged and a summary of facts.

The summary of facts for the s 477A PC charge replicated the charge apart from additional details as to the events which followed from the alleged offence. It stated that sometime in July 2010, the 2nd petitioner passed the allegedly falsified invoice dated 15 July 2010 to the 1st petitioner in Singapore, which the 1st petitioner then forwarded to ZTE’s Singapore branch office. Further:¹⁰

… On or about 31 July 2010, having approved the payment of US$3.6 million to Questzone in accordance with the Invoice and the fictitious contract between ZTE and Questzone, ZTE effected the said payment of US$3.6 million through its Hong Kong subsidiary, ZTE (HK) Limited via a telegraphic transfer to Questzone’s Standard Chartered Bank Account (account number: [xxx]) in Singapore (“the Questzone account”).

Each of the summaries of facts for the remaining five charges under the CDSA was completely identical to the corresponding charge, and included no additional particulars.

On 11 October 2012, each of the petitioners brought an application under s 162(b) read with s 169(2) of the CPC 2010 seeking either a discharge not amounting to an acquittal (“DNAQ”) or an order for further particulars. Each application was predicated upon the Prosecution’s purported failure to comply with the requirements of s 162 of the CPC 2010 in its disclosed summary of facts. The further particulars sought related to three key issues: the party whom the petitioners had allegedly conspired to defraud; the reasons why the sub-contract between ZTE and Questzone was allegedly fictitious; and details of the alleged conspiracy between the petitioners.

The applications were dismissed by the District Court, albeit with an acknowledgement that valid issues had been raised which should be dealt with by the trial judge. This led to the petitioners’ present applications to the High Court for a revision of the District Court’s order.

After hearing submissions from the respective parties, I ordered further particulars in relation to issues (a) and (b) as stated in [10] above, but not in relation to issue (c). I now offer the reasons for my decision.

The relevant legal provisions

The rules governing the CCDC procedure are set out in s 162 of the CPC 2010, which provides that: Contents of Case for the Prosecution 162. The Case for the Prosecution must contain — (a) the charge which the prosecution intends to proceed with at the trial; (b) a summary of the facts in support of the charge; (c) a list of the names of the witnesses for the prosecution;

...

[emphasis added]

Illustration (b) to s 162 offers an example of the application of s 162 to charges involving conspiracy. However, it will be seen that while this illustration is not precisely on point as far as issues (a) and (b) as stated in [10] above are concerned (see [32] below), it is clearly germane to issue (c) as stated in [10] above. Illustration (b) reads as follows: (b) A is charged with conspiracy to cheat together with a known person and an unknown person. The summary of facts should state — (i) when and where the conspiracy took place; and (ii) who the known conspirators were and what they did.

15 It should also be noted that the requirement of a summary of facts for the Prosecution is only applicable for cases heard in the Subordinate Courts. When a case is to be tried in the High Court, the committal hearing procedure applies and no summary of facts needs to be tendered after the committal of the accused for trial, although s 188(4)(l) of the CPC 2010 requires all written statements which will be used as evidence to be disclosed to the Defence.

Background to the CCDC regime

The CCDC regime was brought into being by the CPC 2010, which ushered in a new era of pre-trial criminal discovery. At the second reading of the Criminal Procedure Code Bill 2010 (Bill 11 of 2010), which was eventually enacted as the CPC 2010, the Minister for Law, Mr K Shanmugam (“the Minister”), offered the following exposition on the objectives of the new disclosure procedure (see Singapore Parliamentary Debates, Official Report (18 May 2010) vol 87 at col 487):

Disclosure is familiar to lawyers operating within the common law system. In civil proceedings, the timely disclosure of information has helped parties to prepare for trial and assess their cases more fully.

Criminal cases can benefit from the same approach. However, discovery in the criminal context would need to be tailored to deal with complexities of criminal practice, such as the danger of witnesses being suborned.

To this end, Part IX of the Bill introduces a formalised framework obliging the prosecution and the defence to exchange relevant information about their respective cases before trial. This will introduce greater transparency and consistency to the pre-trial process.

...

The framework has a number of safeguards to try and prevent abuse. The sequential nature of the process protects the interests of [the] prosecution and [the] defence. The onus is on the prosecution to set out its case first, with the accused’s statements that it is relying upon. The provision of all statements after the defence case is filed cuts down on opportunities to tailor evidence. At the same time, if either party refuses to file its case, or files an incomplete case, or advances an argument at trial inconsistent with its previously filed case, the Court may draw any inference it deems fit. In addition, where the prosecution fails to comply with its obligations, the Court may order a discharge not amounting to an acquittal. This approach tries to ensure that parties take discovery seriously.

[emphasis added]

I have quoted these comments of the Minister in extenso because they offer the context within which to interpret the requirement in s 162(b) of the CPC 2010 that the summary of facts in the Case for the Prosecution should be “in support of the charge”. It is trite that the court should interpret a provision of a written law in a manner which promotes the purpose or object underlying that written law (see s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed) and Public Prosecutor v Low Kok Heng [2007] 4 SLR(R) 183 at [39]–[49]). The Minister’s comments reveal unequivocally that the CCDC regime was intended to precipitate a sea change in the criminal discovery process, with the tide shifting towards greater transparency and parity between the parties so as to help them prepare for trial. The requirement for a...