Lim Pei Ni Charissa v Public Prosecutor

• Judgment Date: 20 July 2006
• Date: 20 July 2006
• Docket Number: Magistrate's Appeal No 149 of 2005
• Court: High Court (Singapore)

Lim Pei Ni Charissa

Plaintiff

and

Public Prosecutor

Defendant

[2006] SGHC 128

Tay Yong Kwang J

Magistrate's Appeal No 149 of 2005

High Court

Criminal Procedure and Sentencing–Appeal–Appellant convicted on seven charges for abetment of cheating offences based on trial judge's findings of fact–Trial judge preferring prosecution witnesses' version of facts–Whether trial judge erring in findings of fact and assessment of veracity and credibility of witnesses–Whether appellant's conviction should be set aside–Criminal Procedure and Sentencing–Sentencing–Young offenders–Appellant convicted on seven charges for abetment of cheating offences–Appellant between 17 and 18 years old at time of offences–Factors to consider when deciding whether appellant should be sentenced to probation rather than imprisonment

The appellant was convicted on seven charges under s 420 read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed) for the abetment of cheating offences relating to the use of stolen credit cards and was sentenced to 33 months' imprisonment by the trial judge. The appellant was between 17 and 18 years of age at the time of the offences. The credit cards had been stolen by the appellant's then boyfriend (“Loo”) who had then used the credit cards to make various purchases over two periods in 2003 and 2004. Many of the purchases were made for the appellant's benefit.

In her defence against the charges, the appellant submitted that she did not know that Loo had been using stolen credit cards when he made the purchases for her. The trial judge preferred the version of facts presented by the Prosecution that the appellant had agreed with Loo to use the stolen credit cards to make purchases thus showing her intention to be a party to the conspiracy. The Prosecution's main witness was Loo, whom the trial judge found to be a truthful and forthright witness and whose testimony was corroborated, in parts, by his father. On the other hand, the trial judge found the appellant to be an unreliable witness.

The trial judge considered: (a) the long duration of the conspiracy; (b) the appellant's lack of remorse; and (c) the need for offences involving credit-card fraud to be punished severely in order to deter similarly-minded persons in future, as reasons why the appellant was to be imprisoned rather than be put on probation. The appellant appealed against her conviction and sentence on the ground that the trial judge had erred in his findings of fact and his assessment of the veracity and credibility of the relevant witnesses.

Held, dismissing the appeal against conviction and allowing the appeal against sentence:

(1) An appellate judge had to defer to the findings of fact made by a trial judge which were based on the assessment of witnesses, unless they were clearly wrong or wholly against the weight of the evidence. If an appellate judge wished to reverse a trial judge's decision, he had to not merely entertain doubts as to whether the decision was right, but had to be convinced that it was wrong. The trial judge had applied his mind carefully to the relevant issues and had made a careful assessment of the credibility and testimony of each witness. The trial judge's decision to believe Loo's testimony over that of the appellant could not be faulted. As the elements of the offence of abetment by conspiracy were made out by Loo's version of the facts, the conviction was affirmed: at [4], [12] and [13].

(2) In relation to the appeal against sentence, the general principle was that rehabilitation (ie probation) was the dominant consideration where the offender was 21 years and below. In all such cases, even those involving an egregious offence or a recalcitrant offender, the guiding principle was the likely responsiveness of the young offender to rehabilitation. However, probation was not granted as of right and the court had to take into account all the circumstances of the case including the nature of the offence, the character of the offender and the probation report. In essence, the court had to strive to strike a balance between public interest and the interest of the offender: at [16] and [17].

(3) Although the public interest required the court to be cognisant of the fact that the appellant had committed serious offences over a period of time and to take a harsh stand against credit-card fraud to deter future commission of such crimes, the exceptional circumstances of the case meant that the public interest could also be advanced by ordering probation. The exceptional circumstances included: (a) the offences were not committed by a syndicate but by someone fishing out credit cards from mailboxes using a pair of chopsticks; (b) the appellant's young age at the time of the offences; (c) the fact that the appellant was neither the principal offender nor the instigator of the theft of the credit cards; and (d) the fact that the probation report ordered on the appellant showed the appellant was in a stable relationship, had a baby, had good family support, was an intelligent student with a promising future, had acknowledged her wrongdoing and was receptive to the terms of her intensive probation plan: at [18], [21], [22], [24], [27] and [30].

Chai Chien Wei Kelvin v PP [1998] 3 SLR (R) 619; [1999] 1 SLR 25 (folld)

Chen Weixiong Jerriek v PP [2003] 2 SLR (R) 334; [2003] 2 SLR 334 (folld)

Chua Tiong Tiong v PP [2001] 2 SLR (R) 515; [2001] 3 SLR 425 (refd)

Fadilah bte Omar v PP Magistrate's Appeal No 168 of 1996 (distd)

Hwa Lai Heng Ricky v PP [2005] SGHC 195 (folld)

Johnson v Youden [1950] 1 KB 544 (folld)

Moganaruban s/o Subramaniam v PP [2005] 4 SLR (R) 121; [2005] 4 SLR 121 (folld)

PP v Mok Ping Wuen Maurice [1998] 3 SLR (R) 439; [1999] 1 SLR 138 (refd)

PP v Muhammad Nuzaihan bin Kamal Luddin [1999] 3 SLR (R) 653; [2000] 1 SLR 34 (refd)

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

Senthil Kumar a/l Sintambaram v PP Magistrate's Appeal No 257 of 1999 (distd)

Siauw Yin Hee v PP [1994] 3 SLR (R) 1036; [1995] 1 SLR 514 (refd)

Penal Code (Cap 224, 1985 Rev Ed) ss 107 (b), 109, 420

Probation of Offenders Act (Cap 252, 1985 Rev Ed) ss 5 (1), 5 (4)

Edmond Pereira (Edmond Pereira & Partners) for the appellant

Christina Koh (Deputy Public Prosecutor) for the respondent.

Tay Yong Kwang J

1 The appellant, one Lim Pei Ni, Charissa, faced a total of 177 charges under s 420 read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”) for the abetment of cheating offences relating to the use of stolen credit cards. Seven charges were proceeded upon, against which the appellant claimed trial before the district judge. At the end of the trial, the district judge convicted the appellant on all seven charges and sentenced her to a total of 33 months' imprisonment. She appealed against conviction and sentence.

2 At the hearing before me on 19 May 2006, I affirmed the appellant's conviction and adjourned my decision on sentence pending the preparation of a probation report. On 30 June 2006, I allowed the appeal against sentence, ordering that the appellant undergo a 36-month period of probation, with the appropriate conditions. I now give my reasons for doing so.

The appeal against conviction

The primary issue and the relevant law

3 The trial before the district judge proceeded on the basis that one Roger Loo Chee Hong (“Loo”), the then boyfriend of the appellant, had committed the underlying principal offences of deceiving retail establishments into believing that he was the rightful holder of the stolen credit cards, thereby dishonestly inducing them into accepting the credit cards for payment and delivering the purchased items to him. The key issue was therefore whether the underlying cheating offences had been committed pursuant to a conspiracy between the appellant and Loo.

4 The relevant law was set out succinctly by the district judge in his grounds of decision (PP v Lim Pei Ni Charissa [2006] SGDC 24) at [22]- [24]. Abetment by conspiracy is defined in s 107 (b) of the PC and comprises three elements. First, the person abetting must engage, with one or more persons, in a conspiracy. Second, the conspiracy must be for the doing of...