Low Siew Hwa Kenneth v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 29 August 2003
• Neutral Citation: [2003] SGHC 193
• Date: 29 August 2003
• Subject Matter: Criminal breach of trust and cheating under ss 409 and 420 of the Penal Code (Cap 224, 1985 Rev Ed),Whether trial judge required to make impeachment ruling,Findings of fact by trial judge,Whether sentence imposed by trial judge manifestly excessive given accused's position of high trust and responsibility,Approach to be taken by appellate court,Appeal,Criminal Procedure and Sentencing,Impeachment,No formal application to impeach credit of accused person and witness,Sentencing
• Docket Number: Magistrate's Appeal No 316 of 2002
• Published date: 03 October 2003
• Defendant Counsel: Eddy Tham (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Edmond Pereira (Edmond Pereira & Partners)

1 The appellant was convicted on four counts of criminal breach of trust under s 409 of the Penal Code (Cap 224) and one count of cheating under s 420 of the Penal Code. He was sentenced to terms of imprisonment of 30 months, 15 months, 30 months and 12 months for the first, second, third and fifth charges respectively. These were the s 409 charges. The appellant was also sentenced to 12 months’ imprisonment for the fourth charge, the s 420 offence. The sentences on the first two charges were ordered to run consecutively, for a total sentence of 45 months’ imprisonment. At the end of the hearing before me, I dismissed both the appeal against conviction and sentence. I now give my reasons.

Background

2 Romar Positioning Equipment Pte Ltd (‘RPE’), Romar Technologies Pte Ltd (‘RT’) and GETS Pte Ltd (‘GETS’) formed a group of companies (‘the Romar Group’). The Romar Group’s main business was the design, manufacture, rental and sale of welding machinery. The appellant was a director of RT and GETS until September 1999. Jonathan Lim Keng Hock (‘Jonathan’) was a director of GETS and the managing director of RPE and RT. Wan Pak Chew (‘PC’) was a director of RPE and RT until April 1999.

3 Any two of the three men could sign cheques on behalf of RPE and RT. Although the appellant was not a director of RPE, he was an authorised cheque signatory. Cheques for GETS had to be signed by both the appellant and Jonathan. Jonathan took frequent overseas business trips and PC would also go on overseas trips sometimes. In 1996, Jonathan started travelling very frequently because of large overseas projects. He was away for about half of that year. In 1997, he was away for about 300 days. Before leaving for such trips, Jonathan would sometimes pre-sign cheques.

4 Employees of the Romar Group included Kelly Lee Gek Kiang (‘Kelly’) who was overall in charge of the accounts until June 1999. Cynthia Yong Lai Kang (‘Cynthia’) assisted with the accounts and Alex Ashok (‘Alex’) handled administrative matters.

5 The appellant was also a partner of Romindo, a business registered in Singapore, together with Hedi Setia Gunawan (‘Hedi’). Either of them could sign cheques for Romindo. Hedi was also a director of PT Romindo Mitraperkasa (‘PT Romindo’), an Indonesian company, which acted as the Romar Group’s agents in Indonesia. The understanding between the appellant and Hedi was that Romindo’s bank account would only be used to pay the Romar Group for purchases of welding machines and to receive commissions from the Romar Group in Singapore currency.

6 The appellant was a partner of Ardent Engineering Construction (‘Ardent’) as well, with Marie Teo Boon Choo (‘Marie’) but he was the one who dealt with the operations of Ardent. Marie was the sole proprietor of Serenity Woodcraft and Serene Craft, two interior designing businesses. The three businesses shared premises.

The Prosecution’s Case

First charge

7 The prosecution’s case was that the appellant misappropriated a sum of $80,000 from GETS on or about 23 September 1997. A cash cheque for the said sum was banked into his personal bank account. The cheque bore the signatures of Jonathan and the appellant. The payment voucher for the cheque was prepared by Kelly and signed by the appellant. Cynthia altered the original entries in the payment voucher as instructed by Kelly. The corrections were done sometime after October 1997 after Kelly rejoined the Romar Group. There was a fictitious invoice purportedly by ‘Tung Ya’, a Taiwanese company, with Kelly’s handwriting and the appellant’s signature. This invoice corresponded with the corrected entries in the payment voucher and also with the accounting entries.

8 Jonathan testified that he was unaware of the payment and he did not recall signing the cheque but he thought it could be a cheque pre-signed by him before leaving for one of his overseas trips. He confirmed that there was no such transaction with Tung Ya.

Second charge

9 The appellant misappropriated a sum of $23,100 from RPE on or about 11 June 1997. Again, a cash cheque had been prepared by Kelly and signed by Jonathan and the appellant. Marie banked the cheque into Ardent’s account. The payment voucher for the cheque stated that payment was made to a company called ‘Fukusuke’. The voucher was filled out in Kelly’s handwriting while the signature on the voucher resembled PC’s.

10 According to Jonathan, he believed the cheque was a pre-signed cheque as he was not in Singapore between 6 to 12 June 1997. He confirmed with Fukusuke that it had never received the said sum. PC testified that he did not sign the payment voucher and that he had never seen the voucher or the cheque before.

Third charge

11 The appellant misappropriated a sum of $90,000 from RT by cashing a cheque on 25 June 1997, based on a fictitious Nitron Industrial Inc (‘Nitron’) invoice, which he himself had signed for. The cheque was filled in by Kelly and signed by PC and the appellant. Kelly prepared the payment voucher for the cheque and it was signed by PC. The name of the payee on the voucher was ‘Nitron’, which was written next to the original letters ‘RPE’.

12 PC testified that Kelly had given him the cheque and payment voucher to sign. He had signed the payment voucher in the belief that it was an inter-company transfer of $90,000 from RT to RPE, which was common practice within the Romar Group whenever there were insufficient funds in RPE’s account. If ‘Nitron’ had been stated as the payee, PC averred that he would have checked on the payment. Jonathan confirmed that there was no such transaction with Nitron.

Fourth charge

13 This was the cheating charge. In April 1999, Sin Ek Engineering Pte Ltd (‘Sin Ek’) rented a welding machine from RPE. The appellant and Ng Chwee Peck (‘Ng’) of Sin Ek arranged the rental agreement. Subsequently, Sin Ek wanted to purchase the machine and Ng asked Geraldine Tan Mei Ling (‘Geraldine’) of Sin Ek to liase with the appellant and conclude the sale. The prosecution’s case was that the appellant deceived Geraldine into believing that the machine belonged to Romindo when it actually belonged to RPE.

14 The appellant had produced a fictitious invoice from Romindo. The signature on the invoice resembled Hedi’s. The appellant informed Geraldine that the machine belonged to Romindo and not RPE when she questioned him about its ownership. Geraldine had thought that the machine belonged to RPE but she believed the appellant and duly issued a cheque for $12,000 to Romindo, which the appellant banked into Romindo’s account. The appellant also signed the Sin Ek payment voucher.

15 Hedi testified that he did not prepare or sign the invoice from Romindo. Sometime in September 1999, the appellant had called him and asked for a purchase order from PT Romindo for a welding machine and it was to be backdated to 16 April 1999. The appellant dictated all the words in the purchase order and asked for a corresponding handwritten note. Hedi faxed it to the appellant on 22 September 1999, thinking that it was needed for competition reasons. The appellant did not tell Hedi the purpose of the purchase order. Later, when Hedi demanded to know what the purchase order and the invoice were for, the appellant failed to give him a reply.

Fifth charge

16 On or about 27 January 1998, the appellant misappropriated a sum of $18,000 from RT. The money was taken by a cash cheque, which the appellant had himself prepared. Jonathan and the appellant signed the cheque. The payment voucher for the cheque was unsigned. Jonathan said that this cheque had also been pre-signed before he went overseas and he did not know the purpose of the cheque. Cynthia testified that she could not locate the payment voucher for the cheque when she had to fill in the corresponding accounting records. She made the accounting entries in accordance with Kelly’s instructions.

The Defence

First charge

17 The appellant maintained that Jonathan had agreed to make this payment to him because the appellant had bought some shares on his behalf. He claimed that there was a record of these shares in a file kept in his office in the Romar Group but he did not take the file with him when he left the Romar Group. Jonathan subsequently refused to return the file so the appellant lodged a police report upon the advice of his lawyers.

18 The appellant also explained that the sum of $80,000 had been derived from the inflated costs of renovating RPE’s factory premises at 18 Tuas Crescent. The renovation contract had been awarded to Audex Pte Ltd (‘Audex’) and the appellant alleged that Jonathan had enlisted Audex’s help to inflate the costs, so as to obtain a larger loan from the bank and to satisfy Jurong Town Corporation’s requirements for renewal of the lease. A whole series of transactions involving several companies and the creation of fictitious invoices by Audex and GETS were purportedly carried out to this end. Kelly and Tan Teck Yong (‘Tan’), who was the logistics manager of Audex, corroborated the appellant’s defence.

Second charge

19 The defence here was that the sum of $23,100 was repayment to the appellant for Kian Ho shares bought on Jonathan’s behalf with money borrowed from Ardent. The appellant then gave Marie the cheque and asked her to bank it into Ardent’s account.

20 Romar Group had invested in a project called Ayeyarwady Resources (‘AR’). RPE and RT were to contribute equally to cash calls towards AR. Because RPE paid on behalf of RT towards two cash calls in October and December 1996, RT accordingly repaid RPE a sum of $107,100. The sum of $23,100 was the balance after the respective sums of $64,000 and $20,000 had been withdrawn to pay bonuses to the staff and directors of the Romar Group. Kelly corroborated the appellant’s defence.

Third charge

21 The appellant claimed that the scam in this case was Jonathan’s way of repaying him because he had paid Jonathan’s gambling debts for him. Sometime in mid-1996, the...