Lim Mong Hong v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 22 July 2003
• Date: 22 July 2003
• Docket Number: Magistrate's Appeal No 54 of 2003
• Court: High Court (Singapore)

Lim Mong Hong

Plaintiff

and

Public Prosecutor

Defendant

[2003] SGHC 161

Yong Pung How CJ

Magistrate's Appeal No 54 of 2003

High Court

Criminal Procedure and Sentencing–Appeal–Finding of fact by trial judge in offences involving white collar crime where evidence destroyed or fabricated–Approach to be adopted by appellate court in examining the trial judge's findings of facts–Evidence–Admissibility of evidence–Hearsay–Computer output–Operation of ss 34 and 35 Evidence Act (Cap 97, 1997 Rev Ed)–Requirements under s 35 Evidence Act–Evidence–Weight of evidence–Accuracy and authenticity of computer output–Operation of s 36 (4) Evidence Act (Cap 97, 1997 Rev Ed)

The accused obtained a research grant from the National Science and Technology Board (“NSTB”). In four quarterly reports submitted to NSTB, he represented that his employees, Tan and Yip, received monthly salaries of $4,320 and $3,420 respectively. In reliance on those reports, NSTB paid him 70% of Tan's and Yip's monthly salaries. The Prosecution's case was that Tan and Yip had received much less in salaries each month than what the accused had reported to NSTB. The accused was charged with four charges under s 420 of the Penal Code for cheating. He was convicted and sentenced to a total of 16 months' imprisonment. He appealed against both conviction and sentence. One of his contentions was that a computer printout reflecting the sums paid into Tan's and Yip's Central Provident Fund accounts was inadmissible and could not be used to support the Prosecution's case.

Held, dismissing the appeal against conviction and sentence:

(1) The reversal of a trial judge's finding of facts in the case of white collar crime, where most of the evidence had been destroyed or fabricated, was especially difficult given the importance of the intangible evidence that was only available to the trial judge: at [25].

(2) As the computer printout constituted entries in books of accounts regularly kept in the course of business, it fell within s 34 Evidence Act as a recognised exception to hearsay: at [34].

(3) However, s 35 Evidence Act, which applied to all forms of computer output whether or not they contained hearsay, required those wishing to adduce such evidence to establish that it was safe for the court to rely on it. The nature of evidence needed to prove the accuracy of the computer output depended on the complexity and nature of the computer involved: [35] to [41].

(4) There were no reasons to disturb the trial judge's findings that the computer output had met the requirements of s 35 (1) (c)Evidence Act: at [43].

(5) Section 36 (4) Evidence Act required the court direct its mind to both the accuracy of the computer output and the authenticity of the information contained within. As the Prosecution had not sufficiently established the authenticity of the information in the computer printout, it could only be used as corroborative evidence to corroborate the testimonies of Tan and Yip: at [45] and [46].

Ang Jwee Herng v PP [2001] 1 SLR (R) 720; [2001] 2 SLR 474 (folld)

Aw Kew Lim v PP [1987] SLR (R) 443; [1987] SLR 410 (distd)

Clarke v Edinburgh and District Tramways Company Limited [1919] SC (HL) 35 (folld)

PP v Ang Soon Huat [1990] 2 SLR (R) 246; [1990] SLR 915 (distd)

PP v Poh Oh Sim [1990] 2 SLR (R) 408; [1990] SLR 1047 (folld)

PP v Tan Fook Sum [1999] 1 SLR (R) 1022; [1999] 2 SLR 523 (folld)

R v Shephard [1993] AC 380 (folld)

R v Spiby (1990) 91 Cr App R 186 (folld)

Xia Qin Lai v PP [1999] 3 SLR (R) 257; [1999] 4 SLR 343 (folld)

Evidence Act (Cap 97, 1997 Rev Ed) ss 34, 35, 36 (4) (consd);ss 3 (1), 35 (1), 35 (1) (c), 35 (6)

Penal Code (Cap 224, 1985 Rev Ed) s 420

K Shanmugam SC (Allen & Gledhill) for the appellant

G Kannan (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

1 The appellant, Lim Mong Hong (“Lim”) was convicted on four charges of cheating under s 420 Penal Code (Cap 224). He was sentenced to a term of imprisonment of eight months each on the first two charges and a term of imprisonment of two months each on the last two charges. The first two sentences were to be served consecutively while the last two sentences were to be served concurrently for a total term of imprisonment of 16 months. He appealed against both his conviction and sentence. At the conclusion of the appeal, I dismissed both his appeal against conviction and sentence and I now give my reasons.

Background

2 Lim was the sole proprietor of Cosmos Optical and Metal Engineering (“Cosmos”), a firm that manufactured optical instruments and photographic equipment and conducted research and experimental development on electronics.

3 In mid-1995, he was approached by Tan Hong Hwa (“Tan”) and Yip Cheng Long (“Yip”), to invest in a new project. This project was Tan's and Yip's brainchild and it involved the development of an intelligent universal mounting flash unit (“Flash Project”).

4 Lim expressed his interest and the three of them signed a Memorandum of Intention on Co-operation (“Partnership Agreement”) to jointly develop the Flash Project as partners in August 1995.

5 Subsequently in mid-October 1995, Lim and Dr Lo S Nian (“Dr Lo”), a business colleague of Lim at Cosmos, applied, on behalf of Cosmos, to the National Science and Technology Board (“NSTB”) for a Research and Development Assistance Scheme grant (“NSTB grant”) to develop the Flash Project.

6 They were successful in their application and they accepted the offer of the NSTB grant on 2 November 1995. Under the NSTB grant, Cosmos was entitled to recover 70% of its manpower costs used for the Flash Project from NSTB. Dr Lo was appointed as the principal investigator of the Flash Project.

7 Pursuant to his appointment, Dr Lo drafted quarterly reports to update NSTB on the progress of the Flash Project. These reports were reviewed and submitted to NSTB by Lim. These reports stated, inter alia, that Tan and Yip were employees of Cosmos working on the Flash Project as engineers and that they were paid monthly salaries of $4,320 and $3,420 respectively with a year-end bonus of one month's salary each. On the basis of these reports, NSTB disbursed funds to Cosmos equivalent to 70% of Tan's and Yip's declared salaries.

Prosecution's case

8 The Prosecution's case was simple. Tan and Yip were, in fact, partners with Lim. They were not employees. More importantly, they were not paid monthly salaries of $4,320 and $3,420 respectively. Instead, their remuneration was far less (about $1,000 to 2,000 per month). Furthermore, the...