Liza bte Ismail v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 24 March 1997
• Date: 24 March 1997
• Docket Number: Magistrate's Appeal No 316 of 1996
• Court: High Court (Singapore)

Liza bte Ismail

Plaintiff

and

Public Prosecutor

Defendant

[1997] SGHC 70

Yong Pung How CJ

Magistrate's Appeal No 316 of 1996

High Court

Evidence–Witnesses–Examination–Prosecution failing to cross-examine accused on charge–Accused's testimony treated as unchallenged and accepted by Prosecution–Whether court entitled to reject such testimony–Testimony unsupported by documentary evidence–Whether Prosecution's failure to cross-examine accused had any adverse consequence

The appellant (“Liza”) was convicted on one charge of attempted cheating and five charges of cheating, contrary to s 420 of the Penal Code (Cap 224, 1985 Rev Ed). Liza was found to have committed the offences while employed by Prime Leasing Pte Ltd (“PL”), a credit leasing company, as an accounts clerk. She had been in charge of raising payment vouchers and preparing cheques, and had also handled the standard cash float and comission claims made by PL's sales staff.

One of PL's payment procedures involved the use of the standard cash float for immediate or urgent commission payments. According to this procedure, Liza would take the required amount of cash from the standard cash float, pay the commission claimed, and then prepare a “cash” cheque to reimburse the float fund. Where claims were consolidated, Liza had to issue another payment voucher stating that the consolidated amount taken from the float fund had been reimbursed. During office hours, the cash box was in Liza's custody, and after office hours, it was kept in a safe. Liza was responsible for balancing the float fund before the cash box was kept in the safe each day.

The six charges related to purported duplicate reimbursement of moneys to the standard cash float according to payment vouchers prepared by Liza. The Prosecution's case was that Liza had taken money from PL by dishonestly making double claims for reimbursement. Under PL's payment procedure, if double claims had been submitted, there should have been excess money in the cash box, but this was not the case. There was also evidence that Liza had confessed in respect of three of the charges.

Liza was convicted of the six charges in the District Court, and on appeal, contended that there was no evidence to show that she had misappropriated any funds. She also contended that her conviction in respect of one of the charges, DAC 9796/1996, could not stand as the Prosecution did not cross-examine her in respect of that charge.

Held, dismissing the appeal:

(1) The absence of any excess money in the cash box virtually spoke for itself. Liza bore ultimate responsibility for the missing funds in the cash box, in that she had to account for the funds entrusted under her charge. All the payment vouchers were prepared and filed by Liza. She attempted to show that other sales personnel could have submitted double claims, either mistakenly or intentionally but was not able to point to a single instance of such a mistaken claim: at [59] and [60].

(2) Even if there had been double claims by other sales staff, the cash box would have been augmented with excess payments since every payment made from the Standard Cash Float had to be reimbursed. The fact that this was not the case strongly suggested that any allegations that other sales personnel could have double-claimed were, in all probability, spurious: at [62].

(3) Although the general proposition was that testimony not subjected to contradiction in cross-examination might be treated as unchallenged and thus accepted by the opposing party, the court was still entitled to reject such testimony. A careful evaluation of the totality of the evidence must still be undertaken to determine the cogency and weight of such testimony. Liza's story in relation to DAC 9796/1996 was wholly unsupported by the documentary evidence. As such, the Prosecution's failure to cross-examine her, while undertaken at some peril to its own case, had no adverse consequence: at [72] and [76].

[Observation: If a defence witness's testimony stood in material contradiction to the Prosecution's case, it would have been prudent for the Prosecution to cross-examine that witness. More importantly, the rule in Browne v Dunn (1893) 6 R 67 might have been infringed if such a course was not adopted. As a matter of procedural fairness, the witness should have had the opportunity to explain the material contradictions: at [70].]

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 (folld)

Browne v Dunn (1893) 6 R 67 (folld)

Bulstrode v Trimble [1970] VR 840 (folld)

Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (folld)

Rv Birks (1990) 19 NSWLR 677 (folld)

R v Fenlon (1980) 71 Cr App R 307 (folld)

Rv Manunta (1989) 54 SASR 17 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 18

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

Singa Retnam and Venu Gopal Kurup (Singa Retnam, Kurup & Associates) for the appellant

Wong Siew Ling (Deputy Public Prosecutor) for the respondent

.

Yong Pung How CJ

1 The appellant was convicted after trial in a district court on six counts under s 420 of the Penal Code (Cap 224), comprising one charge of attempted cheating (DAC 9792/1996) and five charges of cheating (DAC 9793-9797/1996). According to the charges, she was found to have committed the offences at the premises of Prime Leasing Pte Ltd (“PL”). PL, a credit leasing company, were her employers until 10 June 1995, when her services as an accounts clerk were officially terminated. I dismissed her appeals on all six charges, and I shall now state my grounds for having done so.

The charges

2 The six charges against the appellant were as follows:

(a) DAC 9792/1996 - attempted cheating on or about 8 June 1995, by deceiving PL into believing that the amount of $1,890 included under payment voucher 3346 had not been paid for.

(b) DAC 9793/1996 - cheating on or about 29 May 1995, by deceiving PL into believing that the amount of $4,825 included under payment voucher 3218 had not been paid for.

(c) DAC 9794/1996 – cheating on or about 6 May 1995, by deceiving PL into believing that the amount of $1,520.64 included under payment voucher 3063 had not been paid for.

(d) DAC 9795/1996 - cheating on or about 29 May 1995, by deceiving PL into believing that the amount of $1,040 included under payment voucher 3228 had not been paid for.

(e) DAC 9796/1996 - cheating on or about 28 May 1995 by deceiving PL into believing that there was a commission claim of $500 for a motor vehicle SBJ 7800K.

(f) DAC 9797/1996 - cheating on or about 1 June 1995, by deceiving PL into believing that the amount of $2,047.50 included under payment voucher 3289 had not been paid for.

3 In each of the above instances, other than in DAC 9792/1996 (attempted cheating), the appellant was found to have dishonestly induced PL to approve the payments as claimed and to release the respective sums to her.

The case for the Prosecution

4 The Prosecution's key witnesses were Vincent Mah Terk Hoong (“Vincent Mah”), PL's accounts supervisor and the appellant's immediate superior, as well as Jimmy Yeo Ban Leong (“Jimmy Yeo”), the general manager and a shareholder of PL. Vincent Mah testified that the appellant joined PL on 17 April 1995. She was in charge of raising payment vouchers and preparing cheques. She also handled the standard cash float and commission claims made by PL's sales staff.

PL's payment procedures

5 According to Vincent Mah, commission claims were paid through two procedures. The first, which may be conveniently termed the “cash cheque” method, required the sales staff to issue a payment (claim) voucher, annexing a copy of the customer's application for vehicle financing. The approval of the general manager (Jimmy Yeo, at the material time) would have to be obtained for the claims. Thereupon the payment claim vouchers would be passed to the appellant, who would prepare “cash” cheques for the general manager to sign. The cheques required a second signatory, who was stationed at PL's head office (Cheng Yong Credit). David Chin, who was employed by PL to handle despatch work, would bring them there to be signed. The duly-signed cheques would then be encashed by David Chin, who would hand over the cash to the appellant.

6 The second procedure involved the use of the standard cash float for immediate or urgent commission payments. The float fund was maintained at a minimum of $5,000, kept in a cash box meant for emergency use. The appellant would take the required amount of cash from the standard cash float, pay the commission claimed and then prepare a “cash” cheque to reimburse the float fund. Where claims were consolidated, the appellant had to issue another payment voucher stating that the consolidated amount taken from the float fund had been reimbursed. Vincent Mah and the appellant each had a key to the cash box. They were the only ones who knew the combination numbers of the lock. During office hours, the cash box was in the appellant's custody. After office hours, it was kept in a safe. The appellant was responsible for balancing the float fund before the cash box was kept in the safe each day.

7 Vincent Mah further said that when a commission had been paid, a number in running sequence would be allocated to the payment voucher. If payment was made by the cash cheque method, the cheque number would also be written on the payment voucher. The evidence as to these procedures was not disputed by the Defence.

The offences

8 All the offences allegedly related to the second procedure, ie the purported duplicate reimbursement of moneys to the standard cash float, according to payment vouchers prepared by the appellant. As the modus operandi in respect of each offence was different, it is necessary to examine each charge in some detail. At the outset, it may be useful to observe that five of the six charges, with the sole exception of DAC...