Ng Siam Cheng Sufiah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 02 December 2019
• Neutral Citation: [2019] SGHC 281
• Plaintiff Counsel: Mahadevan Lukshumayeh (Lukshumayeh Law Corporation) (Instructed) and Loh Chong Yong Thomas (TL Law Corporation)
• Docket Number: Criminal Revision No 4 of 2019
• Date: 02 December 2019
• Hearing Date: 11 September 2019,18 September 2019,31 July 2019
• Subject Matter: Criminal Procedure and Sentencing,Seizure of property,Threshold for exercise of revisionary powers,Section 400(1) Criminal Procedure Code (Cap 68, 2012 Rev Ed),Section 370(1) Criminal Procedure Code (Cap 68, 2012 Rev Ed),Revision of proceedings
• Year: 2019
• Defendant Counsel: Magdalene Huang and Koh Mun Keong (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2019] SGHC 281
• Published date: 07 December 2019

See Kee Oon J:

The petitioner, Ms Sufiah Ng Siam Cheng, filed this application for criminal revision requesting the High Court to exercise its revisionary powers to declare that a sum of $406,933.02 was improperly seized by the Commercial Affairs Department of the Singapore Police Force (“the CAD”), and to grant her liberty to make a claim on the seized monies.

The application was premised primarily on a number of alleged procedural irregularities or improprieties, which were said to impugn the validity and legality of CAD’s seizure of the monies. These included alleged failures to communicate with her, and alleged non-disclosure or non-compliance by the CAD with court directions. The petitioner contended that these irregularities resulted in injustice to her, as she was denied her right to be heard and right to information at various junctures.

After hearing the parties’ submissions, I dismissed the petitioner’s application on 18 September 2019. In doing so, I delivered brief oral remarks. The reasons for my decision are now set out in full as follows.

Facts APB and TGG

The seized monies are currently the subject matter of an ongoing Disposal Inquiry in the State Courts vide No 900020-2018.

The petitioner claimed that sometime around November 2012, she had encountered an advertisement posted by a company by the name of Asia Pacific Bullion Pte Ltd (“APB”). APB offered various investment opportunities that promised periodic returns and the repayment of capital amounts invested in either cash or an equivalent amount of gold or silver.

The petitioner responded to the advertisement and subsequently handed over 4kg of gold to APB. She was given a certificate by an entity known as The Gold Guarantee Pte Ltd (“TGG”), which functioned as a warrant that TGG undertook to deliver to her 4,720g of gold at the expiry of the warrant dated 21 November 2013. The petitioner was also entitled to various payments under the contract that she had entered into with APB; specifically, she was to receive $19,257.60 every three months starting from 21 February 2013.

Unknown to her, both APB and TGG were owned and controlled by one Lee Song Teck (“Lee”).

Lee was using a number of companies, including APB and TGG, to operate several complex investment schemes between 2012 to 2013. Lee’s modus operandi for APB involved the use of a warrant issued by TGG, which “guaranteed” that TGG would serve as a guarantor for APB, to entice potential investors to invest in Lee’s purportedly fraudulent schemes. Lee left Singapore on 18 January 2013, before the CAD commenced their investigations, and remains at large.

The judgment debt owed to the petitioner

On 23 January 2013, the petitioner lodged a Police Report at the CAD against both APB and TGG. She did not receive any payment from APB or TGG for the 4kg of gold that she deposited with APB.

On 30 January 2013, the petitioner commenced Suit No 83 of 2013 (“Suit No 83/2013”) against APB for the sum of $320,960 (being the value of the gold bars delivered to APB).

By this time, the CAD had already commenced investigations against Lee for a number of offences, including criminal breach of trust and cheating under ss 409 and/or 420 of the Penal Code (Cap 224, 2008 Rev Ed), as well as statutory offences under the Banking Act (Cap 19, 2008 Rev Ed), the Companies Act (Cap 50, 2006 Rev Ed), and the Securities and Futures Act (Cap 289, 2006 Rev Ed).

On 1 February 2013, the CAD seized APB’s account with United Overseas Bank (Singapore) Limited (“the UOB account”) pursuant to s 35(1)(a) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”). The UOB account contained a sum of $406,933.02 (“the UOB funds”). The seizure was reported to the Magistrate as required under s 370(1) of the CPC on 12 March 2013. The Magistrate subsequently directed that the UOB funds be retained for the purposes of investigations.

On 5 March 2013, as APB had not entered appearance, the petitioner was granted default judgment in Suit No 83/2013, pursuant to O 13 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”). She was awarded the sum of $320,960.00 as well as interest on the judgment sum at the rate of 5.33% per annum from the date of the writ to the date of the judgment, and costs of $2,300.00.

As APB failed to pay the judgment sum, the petitioner took out garnishee proceedings against UOB, aiming to satisfy the judgment debt owed to her through the UOB funds. She was, however, informed that the CAD had already seized APB’s UOB account.

The petitioner’s then-counsel wrote to the CAD on 11 July 2013 requesting for the release of the judgment sum to her. The CAD replied on 16 July 2013, stating that, pursuant to s 35(8)(d) of the CPC, they could not release the UOB funds to the petitioner, as the CAD had seized the said account by an order dated 1 February 2013, which pre-dated the petitioner’s judgment which was obtained on 5 March 2013.

The Magistrate’s orders

As stated above at [12], the Magistrate had initially directed the CAD to retain the UOB funds for the purposes of investigations. From 2013 to 2018, the CAD continually reported to and updated the Magistrate on the status of its investigations. The following table reflects the various reports provided pursuant to s 370 of the CPC (“the s 370 reports”).

Date on which s 370 report was filed	Date of s 370 hearing	The Court’s Order
12 March 2013	-	Continued retention; review on 11 September 2013
2 July 2013	-	Continued retention; review on 1 January 2014
7 March 2014 (refiled on 13 March 2014)	-	Continued retention; review on 12 September 2014
12 September 2014	-	Continued retention; review on 12 March 2013; CAD to file report 2 weeks before
27 March 2015 (refiled on 15 July 2015)	15 July 2015	Continued retention; review within 6 months from 18 July 2015; CAD to file report 2 weeks before
29 December 2015	2 March 2016	Continued retention; review by 2 December 2016; CAD to file report 2 weeks before
22 November 2016	4 January 2017	Continued retention; review by 4 July 2017; CAD to file report 2 weeks before
20 June 2017	1 August 2017	Continued retention; review by 1 February 2018; CAD to file report 2 weeks before
18 January 2018	-	On 2 February 2018, the court ordered CAD to apply for a Disposal Inquiry

On 2 February 2018, the Magistrate ordered the CAD to apply for a Disposal Inquiry (“DI”) to dispose of the UOB funds. The CAD thus prepared for an application for a DI, taking steps to: Ascertain, from a list of more than 500 complainants, the persons who appeared likely to have an interest in the UOB funds. Contact and notify 146 potential claimants who lodged reports against APB. Inform the 146 potential claimants to submit claim forms to indicate their interest in laying claim to the UOB funds. Review claim forms submitted by approximately 138 potential claimants, as well as the supporting documentation. Conduct funds tracing analysis of payments made to and from APB. Attend to queries from potential claimants. Consult the Attorney-General’s Chambers (“the AGC”) on the method of distribution of the UOB funds amongst the potential claimants.

On 16 July 2018, the CAD applied for a DI to be held in October 2018. The DI was fixed for hearing on 26 November 2018.

On 26 November 2018, the court directed the CAD to conduct a “townhall” session, for the potential claimants to discuss and potentially agree on a method of distribution of the UOB funds. The DI hearing was thus adjourned to 22 February 2019. The petitioner’s counsel attended the DI hearing on 26 November 2018, with no objections being recorded from the petitioner. A total of 112 other claimants were present and/or represented at the DI hearing.

Sometime in December 2018 or early January 2019, in consultation with the AGC, the CAD included in the pool of assets nine yellow-coloured rectangular blocks (presumed to be gold bars) and six silver-coloured rectangular blocks (presumed to be silver bars) (“the seized blocks”) that were seized from APB but could not be traced to any particular investor. The CAD did so as they were of the view that the seized blocks and the UOB funds had a common pool of potential claimants.

Pursuant to a request by the CAD, the DI hearing that was originally fixed for 22 February 2019 was adjourned to 31 May 2019.

On 8 May 2019, the CAD’s application for a DI in respect of the seized blocks was approved and fixed for hearing together with the UOB funds on 31 May 2019.

On 17 May 2019, the “townhall” session was convened for the potential claimants in respect of both the UOB funds and the seized blocks. The petitioner’s counsel, again, attended this session. The potential claimants were however unable to reach a consensus as to the distribution of the UOB funds and seized blocks.

On 31 May 2019, during the course of the DI hearing, the Petitioner’s lawyer informed the court that the present application had been filed on 14 May 2019. The court ordered that the DI proceedings be stayed.

In support of her application, the petitioner filed two affidavits dated 14 May 2019 and 17 July 2019 respectively. The matter was first scheduled for hearing on 31 July 2019 but was adjourned pursuant to the petitioner’s request to consider whether to file a reply affidavit to the respondent’s affidavit (dated 25 July 2019). The parties eventually appeared before me on 11 September 2019 to present their respective oral arguments.

The parties’ positions

The petitioner sought three main orders: that the continued seizure of the UOB account by the CAD after 1 February 2018 was invalid, illegal and illegitimate; that the UOB funds should not be mixed with monies from Lee’s other companies; and that she ought to be given liberty to make claim on...