Loh Shak Mow v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 19 August 1986
• Date: 19 August 1986
• Docket Number: Magistrate's Appeals Nos 126 and
• Court: High Court (Singapore)

Loh Shak Mow and another

Plaintiff

and

Public Prosecutor

Defendant

[1986] SGHC 30

F A Chua J

Magistrate's Appeals Nos 126 and 127 of 1985

High Court

Criminal Law–Offences–Property–Commodities firm “bucketting” clients' orders–First accused convicted of abetment of cheating and criminal breach of trust–Second accused convicted of criminal breach of trust and dishonestly retaining stolen property–Appeals against convictions and sentences–Sections 109, 409, 411 and 420 Penal Code (Cap 103, 1970 Rev Ed)–Criminal Procedure and Sentencing–Joint trial–Joint trial of first accused charged with abetment of cheating and second accused charged with criminal breach of trust–Whether joint trial should have been ordered–Section 175 Criminal Procedure Code (Cap 113, 1970 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Principles–Accused convicted of abetment of cheating and criminal breach of trust–Whether sentence imposed manifestly excessive

In April 1981, the first appellant, Loh Shak Mow (“Loh”) incorporated Broadview Commodities (“BVC”) with Lee Kwong Fai (“Lee”) of Broadview Finance of Hong Kong (“BVF”) in Singapore to trade in spot gold, gold futures and other commodities. The second appellant, Alan Wong Hoi Ping (“Wong”), an advocate and solicitor in the firm of Lee & Lee, was engaged to incorporate BVC. In December 1981, the relationship between Loh and Lee became strained and Wong was invited to be a director and chairman of BVC.

In June 1981 Loh and Lee decided to “bucket” clients' orders (ie that BVC would retain the margin deposits paid by these clients without placing their orders on the market at the various international exchanges and to meet the clients' orders itself). They kept the commissions paid to BVC on each lot of orders and also absorbed all their clients' losses in gold trading as their own profits. They succeeded in doing this without being discovered by their clients and brokers by adopting various measures.

Loh and Wong were jointly tried and convicted. Loh was convicted of six charges of abetment of cheating under ss 420 and 109 of the Penal Code (Cap 103, 1970 Rev Ed) by conspiring with Lee and others to cheat clients by deceiving them into believing that their gold trading orders would be placed with authorised international gold exchanges and 14 charges of criminal breach of trust. Loh was sentenced to terms of imprisonment totalling six years.

Wong was convicted of three charges of criminal breach of trust and one charge of dishonestly retaining stolen property in the possession of BVC. Wong was sentenced to terms of imprisonment totalling 12 months.

Loh and Wong appealed against their convictions and sentences.

Held, dismissing the first appellant's appeal and allowing the second appellant's appeal:

(1) The first appellant and Lee were engaged in a conspiracy to cheat and they had secreted moneys out of BVC by disguising them as margin payments to BVF and putting them into their respective bank accounts. The first appellant dishonestly misappropriated the moneys and the first appellant was therefore guilty of criminal breach of trust: at [151].

(2) The criminal breach of trust charges did not duplicate the cheating charges and the first appellant was guilty of the distinct offences of abetment of cheating and criminal breach of trust. The abetment of cheating offences related to the clients of BVC and the criminal breach of trust charges related to the moneys belonging to BVC. The provisions of the Criminal Procedure Code (Cap 113, 1970 Rev Ed) permitted him to be charged and tried at one trial for each of those offences: at [166].

(3) In an appeal from the trial judge's decision based on his opinion of the trustworthiness of witnesses whom he had seen, the appeal court would not interfere unless it was convinced that the trial judge's decision was wrong. In this case, having regard to the evidence, the trial judge's decision was not wrong and Loh's appeal against conviction was dismissed: at [168] and [169].

(4) The sentences imposed on Loh were manifestly excessive in the circumstances. The sentences were set aside and substituted with a sentence of two years' imprisonment on each charge, the sentences on the first two charges to run consecutively and the sentences on the other charges to run concurrently, making a total of four years' imprisonment: at [172].

(5) The trial judge did not consider the case on the basis of the evidence admissible against each accused separately. The trial judge considered the case as if he was trying charges of conspiracy in which the acts and statements of all the alleged conspirators pursuant to the conspiracy were admissible against both the accused. He treated Wong as a conspirator in a conspiracy with which he was not charged and in which he was not named. A joint trial should not have been ordered as it was not fair and just to Wong and the joinder had occasioned a failure of justice. Wong's convictions had to be quashed: at [187], [188] and [190].

Abdul Ghani v PP [1983-1984] SLR (R) 438; [1984-1985] SLR 141 (folld)

Antonio Dias Caldeira v Frederick Augustus Gray [1936] MLJ 137 (refd)

Haw Tua Tau v PP [1981-1982] SLR (R) 133; [1980-1981] SLR 73 (folld)

PP v Loh Ang Sing [1965] 2 MLJ 129 (folld)

Criminal Procedure Code (Cap 113, 1970 Rev Ed) s 175 (consd)

Evidence Act (Cap 5, 1970 Rev Ed) ss 61, 62, 63, 64, 65

Penal Code (Cap 103, 1970 Rev Ed) ss 109, 409, 411, 420 (consd); s 468

Gilbert Gray QC and Peter Fernando (Leo Fernando) for the first appellant

Michael Sherrard QC and Kan Ting Chiu (R C H Lim & Co) for the second appellant

Loke Yoon Kee (Deputy Public Prosecutor) for the respondent.

F A Chua J

1 The first appellant, Loh Shak Mow and the second appellant, Alan Wong Hoi Ping were jointly tried and convicted by a District Court and sentenced to terms of imprisonment. They now appeal against their convictions and sentences.

2 The first appellant was convicted of:

(a) Six charges of abetment of cheating (DAC 3874/83-3879/83), under ss 420 and 109 of the Penal Code (Cap 103) by conspiring with one Lee Kwong Fai and diverse others to cheat clients of Broadview Commodities various sums of money totalling $1,928,988.88 between December 1981 and August 1982 by deceiving them into believing that their gold trading orders would be placed with authorised international gold exchanges and thereby inducing them into paying moneys into Broadview Commodities. The clients cheated were:

(i) Mdm Chew Swee Poh	$1,062,862.47 (DAC 3874/84)
(ii) Mdm Chew Swee Poh	$80,000 (DAC 3875/84)
(iii) William Tsai Chao Shaun	$312,128.26 (DAC 3876/84)
(iv) Lee Tow Kiat	$221,034.95 (DAC 3877/84)
(v) Lee Tow Kiat	$15,263.20 (DAC 3878/84)
(vi) Michael Choo Kok Lin	$237,700 (DAC 3879/84)

(b) Fourteen charges of criminal breach of trust as an agent (DAC 2536/84-2549/84), under s 409 of the Penal Code (Cap 103) of moneys totalling $1.7m over which he had dominion as a director of Broadview Commodities.

3 The second appellant was convicted of:

(a) three charges of criminal breach of trust as an agent (DAC 2559/84 to DAC 2562/84) of various sums of money totalling $93,340 over which he had dominion as a director and chairman of Broadview Commodities in August and December 1982; and

(b) one charge of dishonestly retaining stolen property (DAC 2560/84), to wit, moneys amounting to $169,703.17 in the possession of Broadview Commodities in October 1982.

4 The first appellant was sentenced to terms of imprisonment totalling six years and the second appellant was sentenced to terms of imprisonment totalling 12 months.

5 The short facts are these. The first appellant (“Loh”) carried on his own shipping business, State Carriers & Transportation Pte Ltd (“State Carriers”), in Singapore. In February 1981 he went to Hong Kong and there, through a friend, he met Lee Kwong Fai (PW4) of Broadview Finance of Hong Kong (“BVF”).

6 Lee Kwong Fai (“Lee”) was the chairman of BVF and his father Lee Kum and his friend Sylvia Leung (“PW5”) were two of the directors. BVF was a registered member of the Hong Kong Commodities Exchange Ltd and both Lee and Sylvia were allowed to trade in spot gold and gold futures with the Hong Kong Commodities Exchange.

7 In Hong Kong, Lee and Loh discussed setting up a company in Singapore to trade in spot gold and gold futures. Lee then came to Singapore and had further discussions with Loh.

8 In April 1981, Loh and Lee incorporated a commodities firm in Singapore called Broadview Commodities (“BVC”) in order to trade in spot gold, gold futures and other commodities.

9 Alan Wong Hoi Ping (“Alan Wong”) was then practising as an advocate and solicitor in the firm of Lee & Lee. He was engaged in March 1981 to incorporate BVC. BVC was incorporated on 20 April 1981, with Loh and Lee holding one million shares each.

10 The staff of BVC comprised most of Loh's former employees in State Carriers, including Eileen Lim (PW8), Abdullah bin Abdul Hadi (PW9), Chen Ah Kong (PW10), Vincent Lim (PW7), Carol Ng (PW13) and various employees of Lee at BVF Hong Kong, which included Eliza Leung (PW2), Sylvia Leung (PW5), Kelvin Ngai (PW3) and Ho Yuen Tin. The Hong Kong staff came to Singapore to assist the BVC staff in gold dealing, documentation and in the preparation of accounts in connection with gold trading.

11 By December 1981 the relationship between Loh and Lee had become strained. Lee then invited Alan Wong to be a director and chairman of BVC. In December 1981 Alan Wong became the chairman and a director of BVC. On that date Lee and Loh each transferred 100,000 $1 shares to him. On 9 December 1981 he received another 100,000 shares from each of them. None of these shares was ever paid for. Lee and Loh held 40% each of the shareholding of BVC and Alan Wong 20%. Alan Wong was also made a signatory of...