Lim Ying Ying Luciana v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: See Kee Oon JC
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] SGHC 151
• Date: 29 July 2016
• Docket Number: Magistrate’s Appeal Nos 9134 of 2015/1 and 9134 of 2015/2
• Published date: 04 August 2016
• Hearing Date: 05 February 2016,29 July 2016
• Defendant Counsel: Kok Shu-En and Christopher Ong (Attorney-General's Chambers),Derek Kang, Geraldine Yeong and Grace Morgan (Rodyk & Davidson LLP)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Appeal

See Kee Oon JC: Introduction

These were an appeal and a cross-appeal against sentences imposed following a conviction entered in a District Court. The accused pleaded guilty to four proceeded charges: (a) one charge of criminal breach of trust as a servant under s 408 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”); (b) one charge of cheating and dishonestly inducing a delivery of property under s 420 of the Penal Code; (c) one charge of assisting another in carrying out the business of moneylending without a licence under s 5(1) read with s 14(1) of the Moneylenders Act (Cap 188, 2010 Rev Ed); and (d) one charge of using the benefits of criminal conduct under s 47(1)(c) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“CDSA”). I will refer to these as the “CBT”, “cheating”, “UML”, and “CDSA” charges respectively. The sums involved were considerable – for example, the CBT charge alone involved a sum of $6,370,280.48. Seven other related charges under the Penal Code and the CDSA were also taken into consideration for the purposes of sentencing.

The District Judge sentenced the accused to six years’ imprisonment for the CBT charge; one year’s imprisonment for the cheating charge; one month’s imprisonment and a fine of $30,000 (in default one month’s imprisonment) for the UML charge; and 18 months’ imprisonment on the CDSA charge. The imprisonment terms imposed for the CBT and cheating charges were ordered to run consecutively, resulting in a total of seven years’ imprisonment. The District Judge’s grounds of decision are reported as Public Prosecutor v Luciana Lim Ying Ying [2015] SGDC 257 (“the GD”).

In their respective petitions of appeal, the Prosecution and the accused raised important points of principle in relation to the sentencing of offenders for the commission of property offences. For this reason, Mr Daniel Gaw was appointed to assist the court as amicus curiae and tasked with addressing the following two questions:¹ whether the value of the goods, which is the subject matter of a criminal offence, should be pegged to its retail value or its replacement value; and whether the fact that an offender did not derive any pecuniary benefit from a criminal offence is a significant mitigating factor, warranting a substantial sentencing discount.

In my judgment, the appeal turned heavily on these two issues. At the outset, I would state that I derived considerable assistance from Mr Gaw’s submissions as well as those of the parties. In particular, I would mention that even though Mr Gaw’s submissions were prepared on short notice, they contained useful expositions of the relevant points of principle in contention and were commendably succinct, cogent, and lucidly organised. The appeals were heard together and dismissed on 5 February 2016.

Summary of relevant facts

The facts were concisely set out in the GD as well as the Statement of Facts (“SOF”) which the accused admitted to without qualification. At the material time, the accused was working as a relationship manager at Hock Tong Bee Pte Ltd (“HTB”), a company dealing in wine and spirits, where she had been employed since July 2010. It was not disputed that during this time, the accused was being harassed by unlicensed moneylenders over debts owed by a former colleague which she had guaranteed.²

As a relationship manager, the scope of her work involved bringing in customers and contacting them to arrange for the purchase of alcohol.³ Each time a customer wished to place an order, his/her relationship manager would open a sales order which would then be sent to HTB’s finance department for processing. Following this, the relationship manager would arrange for the products to be delivered to the client. Customers were allowed to make payment through a variety of means: cash, cheque, telegraphic transfer, or by charging the amounts to their credit cards. Should they elect to pay via credit card, they would provide their credit card details to their relationship manager, who would then furnish these details to HTB’s finance department and arrange for the payment to be made. As a matter of practice, the finance department never dealt with customers directly – even if the customers were in arrears – but would instead contact the customers’ respective relationship managers to ask that they request that their clients make payment forthwith.⁴ HTB would not accept fresh orders from customers who were in arrears.

In time, the accused began sourcing for the names and contact details of professionals with a view towards making fraudulent orders for expensive wines and spirits. She did so by relying on old name cards in her possession or by searching the Internet for the contact details of professionals. She submitted these names to HTB’s finance department, which registered these individuals as new customers and processed the orders placed under their names. After this had been done, the accused then sourced for buyers from amongst her existing clientele. The buyers would be asked to make payment directly to her either in cash, by cheque, or by bank transfer to various bank accounts controlled by her. Once the transfers had been made, she would direct HTB’s warehouse to deliver the fraudulently obtained stocks of alcohol to the buyers.⁵

In this way, she was able to gain access to a large quantity of expensive alcohol (14,698 bottles worth approximately $7m), which she sold to her clients. HTB did not receive any payments for the alcohol which were sold in this way. Of the wines and spirits that the accused dishonestly converted to her own use, only 1,102 bottles were recovered from the buyers. For the acts of defalcation committed during this period, the Prosecution preferred two charges of criminal breach of trust as a servant under s 408 of the Penal Code, of which they proceeded on the second. This was the CBT charge, which stated that between July 2012 and January 2013, the accused dishonestly misappropriated wines and spirits worth a total of $6.4m and retained the proceeds of sale for her own use.⁶

When HTB’s finance department starting chasing the accused for the outstanding payments for the fraudulent purchases, she provided various excuses. She would say that the payment was delayed or that it would be made soon. Eventually, the accused was banned from conducting any further sales on credit when the total amount of outstanding payments under her customers’ accounts became too large. Faced with this, she decided to use the credit card details of existing customers to purchase wines from HTB directly. On 5 February 2013, she placed an order for wines under a pseudonym and made partial payment of $4,196.68 using one of one of her customer’s credit cards. In so doing, she induced HTB to deliver the wines valued at $9,093.60 to yet another customer to whom she had on-sold the wine. This gave rise to the cheating charge.⁷

As stated above, the accused was the subject of harassment from unlicensed moneylenders during this time. Between 25 March and 3 December 2012, the accused deposited part of the proceeds she had obtained through the commission of the CBT and cheating offences into a bank account opened in her mother’s name. In the same period, the accused used a sum totalling $737,295 of the said proceeds to pay off loans which she owed unlicensed moneylenders. For this, the CDSA charge was brought against her.⁸ In May 2012, the accused handed the automatic teller machine (“ATM”) card for her POSB account to a runner of an unlicensed moneylender known only as “Tom”, who had been harassing her. When she handed over her ATM card, the accused was aware that ‘Tom’ was an unlicensed moneylender and that her ATM card and POSB account was to be used by ‘Tom’ to facilitate his carrying out of the business of unlicensed moneylending (see the GD at [14]). This forms the subject matter of the UML charge.⁹

In March 2013, HTB noticed that there were significant arrears in the accused’s clients’ accounts. Suspecting that the accused was being cheated by her clients, HTB’s company manager brought the accused to a police station and a police report was lodged (see the GD at [32] and [33]). Three days later, the accused voluntarily surrendered to the police and informed them of what she had done. This was how the offences came to light. In the course of the ensuing investigations, she provided the police with details of the invoices which had been forged and the identities of the clients to whom she had on-sold the wines.¹⁰ On 21 July 2015, she pleaded guilty to the aforementioned charges and she was sentenced on 20 August 2015.¹¹

The District Judge’s decision

Given that it was common ground that the District Judge was correct in ordering that the sentences for the CBT and cheating charges run consecutively, I need only focus on these two offences and the reasons she gave for imposing the sentences that she did for each.¹²

When the parties appeared before the District Judge, the chief point of contention was the methodology to be employed in the valuation of the wines. The Prosecution contended that the value of the wines misappropriated should be pegged to their retail price of $7m. By contrast, the Defence pointed out that the proper valuation of the misappropriated goods should be their cost price of $4.42m instead (see the GD at [18] and [35]). The Defence arrived at this figure by subtracting 37%, which was the mark-up HTB generally applied on their products, from the retail price. This disagreement led to a marked disparity in the sentences submitted for: the Prosecution asked for a sentence of ten years’ imprisonment to be imposed for the CBT charge;¹³ the Defence submitted that a sentence of 4.5 years’ imprisonment would suffice.¹⁴

The District Judge began by placing the issue of valuation in its proper context. She explained that...