Loo Weng Fatt v Public Prosecutor

• Judge: Yong Pung How CJ
• Judgment Date: 18 July 2001
• Neutral Citation: [2001] SGHC 188
• Citation: [2001] SGHC 188
• Defendant Counsel: Jill Tan (Deputy Public Prosecutor)
• Published date: 11 November 2003
• Plaintiff Counsel: Wee Pan Lee (Wee Tay & Lim)
• Date: 18 July 2001
• Docket Number: Magistrate's Appeal No 9 of 2001
• Court: High Court (Singapore)
• Subject Matter: Complicity,s 107(b) Penal Code (Cap 224),Criminal Procedure and Sentencing,s 34 Penal Code (Cap 224),Whether causing any prejudice to appellant,Revisionary powers of High Court to substitute conviction,s 256(b)(ii)Criminal Procedure Code (Cap 68),Charge,Elements of offence,Whether presence required,Substitution of conviction,Criminal Law,Common intention,Whether appellant participating in criminal act,Abetment by conspiracy,Elements to establish for criminal liability under s 34 of Penal Code,Abetment

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The facts

The Ministry of the Environment (`the Ministry`) had been carrying out a project, involving the replacement of sewerage pipes, at the Penjuru Road pumping station (`the project`). The Ministry awarded the main contract for this project to Eng Tat Engineering Pte Ltd (`Eng Tat`). The appellant was a director of Eng Tat.

As the works on the project progressed, the Ministry made periodic progress payments to Eng Tat. The steps involved in the making of such progress payments were as follows:

(1) Eng Tat would submit monthly progress claims to the Ministry. Each progress claim would show the amount of work done between the last progress payment and the present claim.

(2) One Wong Seng Toong (`Wong`), who was then the project officer in the Ministry, would look at each progress claim before certifying that the work stipulated therein was done. Wong would then recommend that the progress payment be made to Eng Tat.

(3) Upon Wong`s recommendation, the Ministry`s Head of Sewerage Department, one Yeo Seow Eng, would approve the progress payment. The progress payment would then be made to Eng Tat.

This project was completed in December 1995. By then, Eng Tat had already submitted all their progress claims to the Ministry, and the Ministry had in response to these claims made a total of 19 progress payments to Eng Tat. The 19th progress payment was made on 2 November 1995.

However, on 6 July 1996, the Ministry made a 20th progress payment, in the sum of $220,000, into Eng Tat`s account. Since the project was already completed by then, there was no work done to justify this 20th progress payment. Unlike all the other prior progress payments which the Ministry had made, this 20th progress payment did not appear to have been preceded by any corresponding progress claim from Eng Tat.

Lying at the very heart of this case was the question of how the payment of $220,000 came to be made to Eng Tat.

The trial below

Following the above turn of events, the appellant was charged in the district court below. The charge read as follows:

You ... are charged that you, on or about the 2nd day of July 1996, in Singapore, together with Wong Seng Toong and in furtherance of the common intention of you both, cheated one Yeo Seow Eng, the Head of Sewerage Department, Ministry of the Environment, by deceiving the said Yeo Seow Eng into believing that the 20th Progress Payment Certificate for a sum of two hundred and twenty thousand dollars ($220,000) for the Replacement of Pumping Main for Penjuru Road Pumping Station project and certified by Wong Seng Toong was true and correct when in actual fact it was not so, and by such deceit you dishonestly induced the said Yeo Seow Eng to approve and deliver $220,000 to Eng Tat Engineering Pte Ltd, which amount would not have been delivered had he not been so deceived and you have thereby committed an offence punishable under section 420 read with section 34 of the Penal Code, Chapter 224.

THE PROSECUTION`S CASE

The prosecution`s case was that the 20th progress payment was made as a result of a fraudulent scheme which Wong hatched, and to which the appellant was privy.

Sometime in early 1996, after completion of the project, Wong observed that the aggregate of all the progress claims made by Eng Tat came up to only $1.11m. However, the contract price for the entire project was $1.38m, ie the aggregate of the progress claims that could be made by Eng Tat could not exceed $1.38m. As such, there was still room for Eng Tat to put in further claims totalling up to $270,000. Upon observation of this fact, Wong came up with a plan to cheat the Ministry.

Around April or May 1996, Wong arranged to meet the appellant at Aljunied Road. At this meeting, Wong spoke to the appellant about his plan. The plan would require Eng Tat to mark up the sum which it would claim against the Ministry for the total work done on the project. This would induce the Ministry to pay Eng Tat more than what Eng Tat was contractually entitled to. The excess payment was then to be split between Wong and the appellant. At first, the appellant said that he needed time to think about it. Subsequently, he agreed to join in the plan.

Pursuant to the plan, Wong procured Yeo Seow Eng`s approval for the sum of $220,000 to be paid to Eng Tat. In procuring such approval, Wong thus deceived Yeo.

The $220,000 was accordingly credited into Eng Tat`s account on 6 July 1996. After this, sometime between July and September 1996, the appellant met Wong on two occasions. On each occasion, the meeting took place near the Bedok MRT station. During each meeting, the appellant handed Wong $50,000. The total sum which the appellant paid to Wong thus amounted to $100,000.

That, however, was not the end of the scam. About two years later, sometime in April or May 1998, the appellant prepared a draft final bill of quantities (`BQ`), which he submitted to the Ministry for approval. The draft final BQ was meant to evidence the work done by Eng Tat for the entire project. The Ministry was then to vet the draft final BQ, so as to ascertain whether the sum claimed by Eng Tat for the total work done was warranted. If the Ministry found that the sum due for the total work done exceeded the aggregate amount of progress payments that had been made, the Ministry would pay Eng Tat the shortfall. If the Ministry found that the sum due for the total work done was less than the aggregate amount of progress payments made, Eng Tat would have to refund the excess accordingly. Now, as there was an excess payment of $220,000, something had to be done to somehow account for the overpayment. The appellant thus prepared a draft final BQ (P10) with inflated claims.

Unfortunately for the appellant, the plan to cheat the Ministry ran into a hitch at this very last stage. Wong, who had previously been the project manager for the Ministry, left the Ministry in late 1997. It was Wong who had been certifying the progress claims previously made by Eng Tat, and who had recommended that the progress payments be made. It was Wong who fraudulently put in the recommendation that the 20th progress payment be approved. Presumably, Wong should also have been the one to vet and approve P10. With Wong gone, the appellant had to submit P10 to another officer, Devaraj.

When Devaraj received P10, he handed it to one Kenny Ong, a Technical Support Officer with the Ministry, for the purpose of checking. Kenny Ong discovered that the quantities stipulated in P10 were erroneous. Upon this, Devaraj called a meeting with the appellant. At this meeting, the appellant gave Devaraj the impression that P10 had already been approved by Wong.

Nevertheless, Kenny Ong proceeded to revise P10, reducing the claim stipulated therein by the sum of $237,903.41. P10, as amended, was returned to Eng Tat, and Eng Tat accepted the same without any queries. Subsequently, a revised draft final BQ (P9) was prepared, which took into account the corrections that Kenny Ong had made.

As a result of the revisions made to P10 by Kenny Ong, Eng Tat had to refund the excess money (ie $237,903.41, less a 0.22% contractual variation) to the Ministry.

THE DEFENCE

The defence advanced by the appellant below can be summarised as follows.

(1) Firstly, he denied ever having been privy to Wong`s plan to cheat the Ministry.

(2) Secondly, he claimed that the $100,000 paid to Wong was actually a loan advanced by Eng Tat. The loan was made because Wong had pestered the appellant for money. Thinking that Wong was suffering from cancer, the appellant took pity on him and consulted Eng Tat`s managing director, Lim Lek Kiang. Lim had then agreed to Eng Tat extending a loan to Wong.

(3) The appellant also contended that the sums in P10 were not inflated pursuant to any conspiracy to cheat the Ministry. Rather, he said that the figures in P10 were only estimates, which the appellant arrived at after having relied on documents found in the office.

THE FINDING BELOW

At the trial, Wong was the main prosecution witness. The prosecution also called several other witnesses, including Kenny Ong and Devaraj. The main witness for the defence was the appellant himself. After hearing the evidence, the judge rejected the appellant`s version of facts. The appellant was thus convicted and sentenced to 15 months` imprisonment.

The appeal

The appellant appealed against the conviction and the sentence. The prosecution, on the other hand, cross-appealed for the sentence to be enhanced.

The appeal against conviction

SECTION 34 OF THE PENAL CODE: THE REQUIREMENT THAT THE APPELLANT BE PRESENT

Wong was convicted under s 420 of the Penal Code (Cap 224), which reads:

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment for a term which may extend to 7 years, and shall also be liable to fine.

The appellant was also convicted under this same provision, but read with s 34 of the Penal Code. Section 34 reads:

When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.

At this juncture, it is apt to provide a brief summary of the law relating to s 34 of the Penal Code. When a `criminal act` has been committed, the accomplices of the doer of the criminal act can still be held liable for that criminal act even if they did not harbour the specific intention to do that criminal act: see Wong Mimi v PP [1972-1974] SLR 73 [1972] 2 MLJ 75 ; PP v Neoh Bean Chye [1972-1974] SLR 213 [1975] 1 MLJ 3 . The elements needed to bring s 34 into play are as follows:

(1) The parties sought to be held...