Ng Geok Eng v Public Prosecutor

JurisdictionSingapore
CourtHigh Court (Singapore)
Judgment Date21 December 2006
Docket NumberMagistrate's Appeal No 40 of 2006
Date21 December 2006

[2006] SGHC 232

High Court

Tay Yong Kwang J

Magistrate's Appeal No 40 of 2006

Ng Geok Eng
Plaintiff
and
Public Prosecutor
Defendant

Suresh Damodara and Kesavan Nair (David Lim & Partners) for the appellant

April Phang (Deputy Public Prosecutor) for the respondent

Chng Gim Huat v PP [2000] 2 SLR (R) 360; [2000] 3 SLR 262 (refd)

North v Marra Developments Limited (1981) 148 CLR 42 (refd)

PP v Cheong Hock Lai [2004] SGDC 37 (refd)

PP v Cheong Hock Lai [2004] 3 SLR (R) 203; [2004] 3 SLR 203, HC (refd)

PP v Foo Jong Kan [2005] SGDC 248 (refd)

PP v Goh Bock Teck [2002] SGDC 322 (refd)

PP v Goh Bock TeckMagistrate's Appeal No 296 of 2002 (refd)

PP v Gwee Yow PinDistrict Arrest Case No 1738 of 2001 (refd)

PP v Huang Hong Si [2003] 3 SLR (R) 57; [2003] 3 SLR 57 (refd)

PP v Kwek Swee HengDistrict Arrests Cases 28926, 3045 and 3046 of 2003 (refd)

PP v Leong Yew CheongDistrict Arrest Case No 47229 of 2005 (refd)

PP v Ng Tai Tee Janet [2000] 3 SLR (R) 735; [2001] 1 SLR 343 (refd)

PP v Tan Fook Sum [1999] 1 SLR (R) 1022; [1999] 2 SLR 523 (refd)

R v Lloyd (1996) 19 ACSR 528 (refd)

R v MacMillan [1968] 1 OR 475 (refd)

Rupchand Bhojwani Sunil v PP [2004] 1 SLR (R) 596; [2004] 1 SLR 596 (refd)

Securities and Futures Commission v Choi Wai Zak [2003] 1 HKC 30 (refd)

Shapy Khan s/o Sher Khan v PP [2003] 2 SLR (R) 433; [2003] 2 SLR 433 (refd)

Syn Yong Sing David v PPMagistrate's Appeal No 266 of 1998 (refd)

Teo Kian Leong v PP [2001] 3 SLR (R) 767; [2002] 1 SLR 147 (refd)

Tham Wing Fai Peter v PP [1989] 1 SLR (R) 400; [1989] SLR 448 (refd)

UOB Venture Investments Ltd v Tong Garden Holdings Pte Ltd [2000] SGHC 240 (refd)

Xia Qin Lai v PP [1999] 3 SLR (R) 257; [1999] 4 SLR 343 (refd)

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

Prevention of Corruption Act (Cap 241, 1993 Rev Ed)s 6 (a)

Securities and Futures Act (Cap 289, 2002 Rev Ed)ss 197 (1), 201 (b) (consd);s 204 (1)

Securities Industry Act (Cap 289, 1985 Rev Ed)s 102 (b) (consd);ss 97 (1),104 (1) (a)

Criminal Procedure and Sentencing–Sentencing–Principles–Appellant pleading guilty to charges under Securities and Futures Act and Securities Industry Act for offences of market rigging and deceitful practice–Whether sentences imposed manifestly excessive or inadequate–Correct sentencing approach and type of sentences to be imposed–Section 102 (b) Securities Industry Act (Cap 289, 1985 Rev Ed)–Sections 197 (1), 201 (b) Securities and Futures Act (Cap 289, 2002 Rev Ed)

The appellant pleaded guilty and was convicted of three charges under ss 197 (1) and 201 (b) of the Securities and Futures Act (Cap 289, 2002 Rev Ed) (“the SFA”), and one charge under s 102 (b) of the Securities Industry Act (Cap 289, 1985 Rev Ed) (“the SIA”). Of the three charges brought against the appellant under the SFA, one was for creating a misleading appearance (“the offence of market rigging”), whilst the other two together with the single charge under the SIA were for the offences of engaging in practices that operated as a deceit (“the offence of deceitful practice”) upon certain securities trading firms.

The gravamen of the appellant's offences stemmed from his use of various trading accounts to illicitly manipulate the share price of a public-listed company. The share trading accounts that the appellant used were variously registered in his own name, as well as in the names of his wife and his friend. The appellant was sentenced to a fine of $250,000 for the offence of market rigging, and to three months imprisonment for each of the remaining three charges for the offence of deceitful practice. Two of the charges were ordered to run consecutively with each other and concurrently with that imposed for the third charge, resulting in a total sentence of six months' imprisonment and a fine of $250,000. The appellant appealed against the sentence.

Held, allowing the appeal and reducing the appellant's sentence for each of the three offences of deceitful practice to a fine of $50,000, and varying the sentence for the offence of market rigging to a term of six months' imprisonment:

(1) Notwithstanding the net reduction in the total fines levied, the changes made to the appellant's sentence were to be regarded as a variation of the respective apportionments of punishment between each of the offences inter se, rather than as a reduction of the appellant's composite sentence: at [8].

(2) The appellant's offences of deceitful practice belonged to the sub-category of offences under s 201 (b) often referred to as the “unauthorised share trading” cases. The term “unauthorised” was capable of bearing two meanings. First, it could refer to the lack of consent on the part of the account owner. Second, it could refer to the lack of consent on the part of the securities trading firm with whom the account was opened. Custodial sentences had generally been imposed in both such categories of “unauthorised” share trading offences under s 201 (b) of the SFA. The lack of distinction between the two categories of “unauthorised” share trading was no longer to be accepted. Having regard to the interests of investors, and the need to maintain public confidence in the mechanics of the securities trading market, imprisonment was generally more warranted in situations where the lack of authority related to the account holder, rather than the securities trading firm alone. Ultimately, it was the cumulative identities of the accused and the person deceived that provided sufficient impetus to impose a term of imprisonment: at [35], [36], [41], [49], [54] and [56].

(3) Imposing custodial sentences as a matter of course for all categories of “unauthorised” share trading, whether with or without the account holder's consent, would result in a failure to advance the underlying sentencing objectives in this area of law. A term of imprisonment was only to be the norm where the inherent nature of the offence posed a sufficient threat to the interests of innocent layperson investors, where the conduct in question involved the concordant abuse of investor confidence: at [60].

(4) The existing sentencing practice for offences of market rigging under s 197 (1) of the SFA had generally attracted sentences of fine rather than imprisonment. The erstwhile reluctance to impose imprisonment for offences of market rigging was no longer to prevail. The prevailing approach of merely imposing a fine in such cases failed to sufficiently express the abhorrence with which our society regarded such conduct, and reflected a disparity untenable in both principle and logic. There seemed little justification why offences of false trading and market rigging generally merited a fine whilst offences of unauthorised share trading attracted the more severe penalty of imprisonment. Market rigging was an egregious form of disruption to the orderly conduct of our securities market and was to be deterred more strongly by sentences of imprisonment in appropriate cases: at [42] and [61].

(5) The apparent schism in the respective sentencing practices vis-à-vis the offences under ss 197 (1) and 201 (b) of the SFA was to be bridged in order to create a more coherent sentencing policy for securities offences. A greater degree of sentencing parity was to be struck, at the very least, by the recognition that offences of false trading and market rigging were to attract sentences of imprisonment in a broader category of situations than they had thus far: at [66].

(6) The sentences imposed for the three offences of deceitful practice were manifestly excessive and failed to accord with the principles of ordinal and cardinal proportionality. The trial judge relied on irrelevant matters by allowing the effects of the appellant's market rigging to affect the sentences for the distinct offences of unauthorised share trading, and omitted to accord sufficient weight to the fact that the appellant's use of the accounts had taken place with the account holder's consent. The imposition of the maximum fine was inappropriate in the circumstances, not least because no loss had been caused: at [67], [68], [69], [72] and [81].

(7) In a similar vein, but to an opposite effect, the sentence imposed for the offence of market rigging was manifestly inadequate. The trial judge failed to have sufficient regard to the relevant sentencing principles of deterrence and proportionality. It was imperative for the law to unequivocally express its abhorrence for persons who surreptitiously attempted to disrupt the forces of market fair play in such a severe and calculated manner. Having regard to the sustained nature of the appellant's market-rigging practice, a custodial sentence was eminently justified: at [67], [74], [79]and [82].

Tay Yong Kwang J

1 This was an appeal against sentence. The appellant, a 52-year-old male, pleaded guilty and was convicted of a total of four charges, three of which were brought under the Securities and Futures Act (Cap 289, 2002 Rev Ed) (“the SFA”) and one under the Securities Industry Act (Cap 289, 1985 Rev Ed) (“the SIA”). The gravamen of the appellant's offences stemmed from his use of various trading accounts to illicitly manipulate the share price of a company known as Autron Corporation Limited (“Autron”), which was listed on the mainboard of Singapore Exchange Limited (“SGX”). The share trading accounts that he used were variously registered in his own name, as well as in the names of his wife, Lim Man Peng, and his friend, Low Swee Seh (“Low”).

2 Of the three charges brought against the appellant under the SFA, one was for a count of creating a misleading appearance (“the first charge”), whilst the other two (“the second charge” and “the third charge” respectively), together with the single charge under the SIA (“the fourth charge”), were for the offences of engaging in practices that operated as a deceit (“the offence of deceitful practice”) upon certain securities trading firms...

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