Ng Kum Peng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 14 August 1995
• Neutral Citation: [1995] SGHC 193
• Docket Number: Magistrate's Appeal No 136 of 1995
• Date: 14 August 1995
• Year: 1995
• Published date: 19 September 2003
• Plaintiff Counsel: Narinder Singh Kang (N S Kang)
• Citation: [1995] SGHC 193
• Defendant Counsel: Lim Yew Jin (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Sentence,Credit and Security,ss 2 & 3 Moneylenders Act (Cap 188),Whether excessive,Illegal money-lending,Loans made to a single borrower,Threat of force in case of default,Rebuttal of statutory presumption,Money and moneylenders,Whether caught by the Moneylenders Act,Benefits derived from transactions,Protection of the public,s 8(b) Moneylenders Act (Cap 188),Relevant considerations,Test of system and continuity,Maximum fine for first conviction,ss 2, 3 & 8(b) Moneylenders Act (Cap 188)

The appellant appealed against convictions and sentence on three charges. After hearing the submissions I dismissed the appeals and now set out my grounds.

The first charge was as follows:

You, Ng Kum Peng, M/26 yrs (NRIC No S6847541D), are charged that you, on a day in April 1990 at Balestier Road, Singapore, did carry on a business as moneylender without holding a licence to so do by giving a loan of $300 repayable over 18 days at $20 per day to one Pang Teck Peng and you have thereby committed an offence under s 8(b) of the Moneylenders Act (Cap 188).

The second charge was in the same terms, but in relation to a transaction occurring sometime in May 1990. The third charge read:

You, Ng Kum Peng, M/26 yrs (NRIC No S6847541D), on a day in June 19990 at Balestier Road, Singapore, did carry on business as a moneylender without holding a licence to so do by giving a loan of $300 to one Pang Teck Peng with interest at $20 per day payable daily until said Pang Teck Peng repays you $300 as a lump sum and you have thereby committed an offence under s 8(b) of the Moneylenders Act (Cap 188).

The prosecution`s case

It was the prosecution`s case that the appellant, whom the complainant claimed to be a loan shark, on three separate occasions in April, May and June 1990 illegally lent money to the complainant at a gambling den along Balestier Road. The terms of the first two transactions, which were similar, were that on loans of $300, the complainant had to make daily payments of $20 for eighteen days, giving total sums in each instance of $360. The interest charged on each occasion therefore would have been $60, or 20%. On the first occasion, the complainant had in fact been unable to pay the daily sum on the seventh day, which led the appellant to cause the complainant to start all payments afresh. The complainant alleged that subsequently, when she could not pay on a particular day, she had to pay an additional $10 for each day in default. The third transaction, which involved a loan of $300 as well, required the complainant to make daily payments of $20 until she was able to repay the full amount loaned. The appellant threatened the complainant with assault if she defaulted. The complainant also alleged that the appellant loaned money to other persons.

Subsequently, after all the transactions had been completed, the appellant had allegedly assaulted the complainant at a gambling den in Geylang. This assault was said to have occurred because of some resentment the appellant held against the complainant. The complainant claimed to have attempted to make a police report, but had been dissuaded by the recording officer, who suggested that she accept money in compensation from the appellant. The complainant then made a magistrate`s complaint on the assault, but, according to appellant`s counsel at trial, the action was struck off after she failed to turn up during mention. On 17 May 1994, the complainant made a report of the assault to another officer. In that report, it was disclosed that the appellant was a loan-shark. That description caused the police to launch an investigation of the appellant, which eventually led to the charges in question being laid against him. It was established that the appellant was not a licensed moneylender.

The appellant had apparently made a statement to the police. It was not tendered as evidence.

The appellant`s case

The appellant`s case is that he had indeed loaned money to the complainant, but it was only on one occasion and no interest had been charged. The money was repaid the day after it was borrowed. No other transaction had taken place between them. The appellant denied being in the business of illegal moneylending.

The decision below

The trial judge convicted the appellant on all three charges, imposing a fine of $5,000 for each offence, which was the maximum allowed under the law as it stood at the time of the offences.

The trial judge stated that the only real evidence against the appellant was the testimony of the complainant, whom the judge noted probably had a grudge against the appellant as she had allegedly been assaulted by him. Nonetheless, the judge found that the complainant was a witness of truth and accepted her testimony. He said that the complainant`s testimony was not discredited by her cross-examination, in which the appellant had tried to show inconsistencies in her testimony. One of the inconsistencies contended for by appellant`s counsel was that, although she had testified that the appellant did not gamble, the complainant, in her cross-examination, did say that the appellant gambled occasionally. The trial judge found that there was no inconsistency as the complainant in her cross-examination had, in so testifying, merely agreed that the appellant and her had met at the gambling den where both of them were gambling.

The trial judge disbelieved the testimony of the appellant. He did not find it credible that the appellant could have loaned $300 to someone described as not being a friend. The judge also found that although the appellant claimed that that loan had been repaid the next day and had come from his winnings, on being charged he had stated that he could not remember much about the matter .

Referring to s 3 of the Moneylenders Act (Cap 188) (the Act), it was held by the trial judge that the appellant was indeed a moneylender. Citing as authority Subramaniam Dhanapakiam v Ghaanthimathi , the learned judge held that there had to be system and continuity in the transactions in order for the court to establish that there was a business of moneylending conducted by the appellant. Such system and continuity was found in the common, continuous system of repayment in the first two loans. It was also found that there was a system in the repayment of the third loan. Additionally, the complainant had testified that the appellant was seen by her to lend money to other persons. It was found that, unlike the facts of Subramaniam , the loans in the instant case were not friendly loans between two long-term friends. The appellant was therefore fined.

The appeal

The appellant appealed on the grounds that the evidence of the prosecution was insufficient and inconsistent, that it was proven that there were merely loans to one person and that there was no system and continuity in the transactions. The appellant also contended that the sentence was excessive, in that this was the appellant`s first conviction for such an offence, and that no force had been used in these transactions.

The following issues arose, namely, whether:

(i) the evidence was cogent and sufficient;

(ii) the appellant was a moneylender; and

(iii) the sentence was appropriate.

The evidence

The appellant argued that the evidence did not support conviction on several grounds. These were that:

(a) the evidence was weak;

(b) there were inconsistencies;

(c) there was no corroboration; and

(d) the evidence of the appellant was credible

Weak evidence

The appellant contended that the evidence against him was weak as the complainant could not remember details such as the address of the den, the dates of loan and repayment and the allegations were made a long while after repayment, and were only disclosed in the context of a complaint of assault.

This was without merit. The details which could not be remembered were only minor ones. The main details, ie the fact that the loans were taken out, and the terms of repayment, were remembered. As for the fact that the allegations were made a long while after repayment, it must be noted that, in the first investigation report actually recorded, it was only mentioned in passing that the appellant was a loan-shark. The main thrust of that report was the assault. In re-examination the evidence of the complainant was that the assault was the primary consideration in her mind:

Q: At the time you made the report on 17 May 1994, were you more concern [sic] with the assault or the illegal loans that you had fully repaid?

A: Both

Q: Foremost in your mind, what were you going to report?

A: Firstly, about the assault; secondly, the illegal moneylending.

Notwithstanding her response to the first question, the record showed that the complainant was more concerned with the assault than the moneylending, which would explain why the complaint was only lodged four years later.

Another weakness in the complainant`s evidence raised by the appellant concerned the allegations made by the complainant against the recording officer who had first listened to her complaints of assault. Such allegations were not inherently incredible and did not in any way detract from her testimony in respect of the allegations of moneylending.

As for the argument put forward by counsel that it was odd that the appellant would assault the complainant after payment, even if the complainant`s explanation that this was a result of some grudge borne by the appellant was not accepted, this issue would relate solely to the question of assault, and has very little bearing on the issue of moneylending. Therefore, the weight to be placed on this supposed...