Moganaruban s/o Subramaniam v Public Prosecutor

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Yong Pung How CJ
• Judgment Date: 16 August 2005
• Neutral Citation: [2005] SGHC 147
• Citation: [2005] SGHC 147
• Plaintiff Counsel: Jimmy Yim SC and Abraham Vergis (Drew and Napier LLC)
• Defendant Counsel: Han Ming Kuang (Deputy Public Prosecutor)
• Docket Number: Magistrate's Appeal No 9 of 2005
• Published date: 16 August 2005
• Date: 16 August 2005
• Subject Matter: Whether harsh sentence necessary as deterrent,Sections 109, 193, 420 Penal Code (Cap 224, 1985 Rev Ed),Criminal Law,Whether sentence imposed manifestly inadequate,Factors to be considered in imposing sentence,Criminal conspiracy,Whether procedural irregularities in recording of investigative statement automatically rendering statement inadmissible,Criminal Procedure and Sentencing,Sentencing,Complicity,Principles,Whether appellant's conviction should be overturned,Appellant convicted of conspiring to defraud court and insurance companies,Appellant challenging district judge's findings of fact and assessment of veracity and credibility of witnesses

16 August 2005

Yong Pung How CJ:

1 The appellant was convicted in the court below of:

(a) one charge (District Arrest Case No 26638 of 2004) under s 193 read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed) for conspiring to furnish false evidence for the purpose of obtaining a grant of letters of administration (“the first charge”); and

(b) three charges (District Arrest Cases Nos 26635, 26636 and 26637 of 2004) under s 420 read with s 109 of the Penal Code for conspiring to cheat three insurance companies into disbursing a total of $331,340.95 (“the second to fourth charges”).

2 The appellant was sentenced to six months’ imprisonment for the first charge and ten months’ imprisonment for the second to fourth charges. The sentence for the first charge was ordered to run consecutively to the term imposed for the fourth charge. This amounted to a total of 16 months’ imprisonment.

3 I dismissed the appeal against conviction and enhanced the appellant’s sentence to a total of 26 months’ imprisonment pursuant to my powers under s 256(c) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed). I now set out my reasons.

Undisputed facts

4 This appeal concerned a conspiracy to cheat three insurance companies into disbursing a total of $331,340.95 in insurance moneys to one Renuga Devi d/o Sinnadury (“Renuga”), on the false premise that the appellant’s brother, Gandaruban s/o Subramaniam (“Gandaruban”), had died. Gandaruban left Singapore sometime after 28 June 1987 to escape his business creditors. On 2 August 1988, Renuga petitioned to the High Court for a Grant of Letters of Administration. This claim was supported by a death certificate that had supposedly been issued by the Sri Lankan authorities. The death certificate indicated that Gandaruban had died on 21 October 1987. In her petition, Renuga prayed that she and the appellant be allowed to jointly administer Gandaruban’s estate. In fact, Gandaruban was alive at all material times and the death certificate was false.

5 Renuga also made claims on three life insurance policies that had been purchased by Gandaruban before his “death”. The appellant accompanied her to make these claims, and when the insurance companies eventually disbursed the money by way of cheques made out to Renuga in May 1989, the appellant was present as well.

6 Renuga and the appellant opened a joint account on 3 July 1989 and deposited some of the insurance moneys therein. As either of them was entitled to make withdrawals from this account, the appellant subsequently made the following withdrawals:

(a) $129,525 on 13 November 1990 to pay for a Mercedes Benz for use in Advance Car Rental, which both the appellant and Renuga were involved in running (exactly what roles they played within the company was in dispute);

(b) $47,500 on 19 December 1991;

(c) $74,500 on 26 February 1992; and

(d) $50,000 on 29 January 1993.

On 2 November 1991, the appellant also deposited $147,500 into the joint account. This money was obtained from the sale of the Mercedes Benz bought on 13 November 1990.

7 After faking his death, Gandaruban assumed a false identity and lived in Sri Lanka. Renuga and their three children paid him several visits. On 22 March 1994, Renuga registered a marriage in Sri Lanka with Gandaruban under his assumed identity. Their fourth child was subsequently born.

8 On 12 May 2004, Renuga pleaded guilty to one charge of conspiring with Gandaruban and the appellant to cheat the insurance companies. The rest of the charges against her were taken into consideration, and she was sentenced to one-year’s imprisonment. Gandaruban is still at large.

The trial and decision below

9 The trial below proceeded on the basis that Gandaruban and Renuga had committed the underlying principal offences of furnishing false evidence and making fraudulent insurance claims. The key issue in the trial was thus whether, at the material times in 1988 and 1999 (during the probate and insurance proceedings), the appellant knew that Gandaruban was still alive, and whether he had conspired with Gandaruban and Renuga to perpetrate the fraud.

10 The Prosecution’s main witness was Renuga, who essentially testified that the appellant was aware of and complicit in the scam. The Prosecution also utilised the incriminating evidence of Renuga’s sister, Ranchitha Devi d/o Sinnaduray (“Ranchitha”), and the statement of Mr Lim Teck Ser (“Lim”), a friend and former business associate of Gandaruban, taken by the Commercial Affairs Department (“CAD”). Lim’s CAD statement was tendered pursuant to s 147(3) of the Evidence Act (Cap 97, 1997 Rev Ed).

11 The appellant argued that, at the material times, he believed that his brother was dead, and that he was neither aware of nor involved in the scam. At the trial below, defence counsel sought to utilise Lim’s sworn testimony, as well as the testimony of Gandaruban Gantha Ruby (“Ruby”), Gandaruban and Renuga’s oldest daughter, in order to exculpate the appellant.

12 The district judge found that the Prosecution had proved beyond a reasonable doubt that the appellant had known of the scam and had actively participated in its perpetration. In essence, the district judge arrived at this conclusion by relying on the evidence of Renuga and Ranchitha, whom he found to be truthful and reliable witnesses. In particular, Renuga’s evidence that the appellant had co-ordinated with Gandaruban to arrange for Renuga to give false evidence and submit false insurance claims was accepted, as was Ranchitha’s corroborating testimony that the appellant had taken Renuga and the children to Johor Baru to visit Gandaruban on weekends preceding the insurance payouts.

The appeal

13 Before me, counsel for the appellant contended that the district judge had, firstly, made certain findings of fact without basis and had, secondly, failed to make other findings of fact that should have been made in the light of the evidence before him. The appeal against the district judge’s findings was on the ground that:

(a) the district judge erred in finding Renuga a truthful and credible witness, placing undue emphasis on the parts of her testimony that incriminated the appellant;

(b) the district judge erred in rejecting the appellant’s testimony and finding him an unreliable witness;

(c) the district judge erred in finding that Renuga’s testimony had been corroborated by Ranchitha;

(d) the district judge erred by giving undue weight to the CAD statement of Lim in preference to Lim’s sworn testimony; and

(e) the district judge erred in law and fact by finding that Ruby was a partial witness and that her testimony was non-material.

14 I was aware that most of the appellant’s key arguments brought before me pertained to the district judge’s findings of fact and his assessment of the veracity and credibility of the witnesses. Before adverting to these contentions, I reminded myself of the principle that since the district judge has had the benefit of hearing the evidence of the witnesses and observing their demeanour, an appellate judge must defer to the findings of fact made by the district judge which are based on the assessment of witnesses, unless they are clearly wrong or wholly against the weight of the evidence. Should the appellate judge wish to reverse the district judge’s decision, he must not merely entertain doubts as to whether the decision was right, but must be convinced that it is wrong: PP v Poh Oh Sim [1990] SLR 1047 at 1050, [8]; PP v Azman bin Abdullah [1998] 2 SLR 704 at [21]. However, when it comes to inferences of facts to be drawn from the actual findings, the appellate judge is as competent as any trial judge to draw any necessary inferences of fact from the circumstances of the case: PP v Choo Thiam Hock [1994] 3 SLR 248 at 253, [12]; Yap Giau Beng Terence v PP [1998] 3 SLR 656 at [24].

15 Bearing in mind the more limited function that an appellate court may play in the fact-finding process, the appellant had to do more than highlight sporadic gaps and inconsistencies in the witnesses’ testimonies. Rather, he had to convince me that the district judge had clearly made the wrong findings of fact in the light of all the evidence. After hearing his submissions, I was of the view that the appellant had not provided me with sufficient reason to overturn the decision below. I now deal with each ground of appeal in turn.

Did the district judge err in finding Renuga a truthful and credible witness, placing undue emphasis on the parts of her testimony that incriminated the appellant?

Renuga’s testimony

16 Renuga was the Prosecution’s chief witness at trial and it was her testimony that was key in incriminating the appellant. Among other things, Renuga testified that:

(a) Sometime in or after June 1988, she received a telephone call from Gandaruban informing her that the appellant would be bringing some documents for her to sign. After this phone call, the appellant went to Renuga’s house and she signed the documents.

(b) The appellant subsequently brought Renuga to the High Court to affirm an affidavit to various insurance companies to make claims and collect the insurance moneys. Before each trip, Gandaruban would call to inform her of what was happening. The appellant would then arrive at Renuga’s house without her having to contact him.

(c) On a number of occasions, the appellant drove Renuga and the children to see Gandaruban for the weekend in Johor Baru. The appellant would sit and talk to Gandaruban before returning to Singapore. The appellant would return on Sunday to bring them home.

(d) The appellant and Lim had on occasion visited Gandaruban in Johor Baru together.

(e) After Renuga had collected the insurance payouts, Gandaruban instructed her to open a joint bank account with the appellant and deposit the moneys therein. Renuga did not make withdrawals from that account. Instead, she and the children were dependent on a monthly allowance of $1000 provided by the appellant....