Nomura Taiji and Others v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 19 January 1998
• Neutral Citation: [1998] SGHC 19
• Docket Number: Magistrate's Appeal No 91 of 1997
• Date: 19 January 1998
• Year: 1998
• Published date: 19 September 2003
• Plaintiff Counsel: Edmond Pereira (Edmond Pereira & Partners)
• Citation: [1998] SGHC 19
• Defendant Counsel: Second, third and fourth appellants in person,Hamidul Haq and Helen Ng (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Subject Matter: Test of knowledge,Elements of aiding and abetting,Aiding and abetting fraudulent use as genuine forged document,ss 107, 109, 467 & 471 Penal Code (Cap 224),Whether sentence to reflect proportionately amount of loss to victim,What constituted 'reason to believe',Knowledge of forgery,Criminal Procedure and Sentencing,Rate of success of scam concocted by appellants taken into account,Whether first appellant's acts carried out in order to facilitate commission of offences,Abetment,Wilful blindness and inference of guilty knowledge,Criminal Law,Sentencing,Factors determining severity of sentence,Intentionally aiding commission of offence

Judgment:

1.YONG PUNG HOW CJ

The charge

The first appellant was charged with two counts of aiding and abetting one Sadako Okada (Okada) to fraudulently use as genuine, a forged document, namely one Dai-Ichi Kangyo Bank Ltd bank draft valued at [bull ]1.27 trillion, by presenting it to the Union Bank of Switzerland on 14 February 1996 and to the Republic National Bank of New York on 15 February 1996, for the purpose of opening an account and crediting the said sum into the account, pursuant to s 467 read with ss 471 and 109 of the Penal Code (Cap 224).

2.The second, third, and fourth appellants and one Heng Bah Bee (Heng) were charged with two counts of conspiracy to assist Okada in the abovementioned offences, pursuant to s 467 read with ss 471 and 109 of the Penal Code.

3.The first and second appellants were sentenced to 48 months` imprisonment on each charge. The third and fourth appellants were sentenced to 54 months` imprisonment on each charge, and Heng was sentenced to 60 months` imprisonment on each charge. The sentences on both charges for all the appellants and Heng were to run concurrently.

4.On 17 August 1996, Okada was convicted of three offences under s 467 of the Penal Code. She was sentenced to nine months` imprisonment on each of the charges, with two of the sentences to run consecutively. Whilst serving her sentence, Okada passed away in Changi Prison in March 1997.

5.The appellants appealed against their convictions and sentences. At the conclusion of the appeal, I dismissed their appeals against conviction but varied the sentences. I now give my reasons for so doing.

The prosecution`s case

PK Goh`s testimony

6.According to one PK Goh (Goh), who was a prosecution witness, he met the third appellant (Chao) some two years back when he was helping a friend in business. Sometime in December 1995, Chao faxed Goh a bank draft, written in Japanese, as well as a translation of that draft in English. The bank draft was drawn on the Dai-Ichi Kangyo Bank and had a face value of [bull ]1.27 trillion.

7.Chao asked Goh to assist him to look for a bank to encash or discount the draft. Goh was shocked when he first saw the huge amount on the draft. Chao informed him that the draft was genuine and that it belonged to the daughter of a former emperor of Japan.

8.On 23 January 1996, the fourth appellant (Hsiao) and Chao came to Singapore to see if they could help the owner of the draft to encash it. Goh was introduced to Hsiao for the first time then. He also met the second appellant (Shudo) and Okada, who was the owner of the draft and the alleged daughter of a former emperor of Japan.

9.Goh introduced Chao and Hsiao to Heng who he thought could help Okada to encash the draft. Thereafter, Hsiao and Chao left Singapore. Sometime later, Heng informed Goh that he wanted to meet Okada. Hsiao came to Singapore again with Okada on 14 February 1996 and she was introduced to Heng.

Visit to the Union Bank of Switzerland

10.Charles Ng (Charles), head of marketing at the Union Bank of Switzerland (UBS) testified that at the end of January 1996, Heng called him to enquire about opening an account at UBS. At a subsequent meeting with Charles, Heng claimed to be a former senior officer at the Development Bank of Singapore (DBS) and a director of a public-listed company. Heng told Charles that he would introduce a Japanese business associate to open an account at UBS. Charles knew that Heng was not a customer of UBS and did not have any previous dealings with UBS.

11.In early February 1996, Heng brought Hsiao to attend a second meeting with Charles, to enquire about opening an account at UBS and about its banking services. Lena Ho (Lena), an officer of UBS, was also present at this meeting. Charles and Lena were shown a copy of the bank draft and were informed that the person who would be opening an account was a Japanese lady related to the Japanese royal family.

12.Heng arranged for another meeting on 14 February 1996 at UBS. This time, Heng, Hsiao, Okada and Shudo met Charles and Lena. According to Charles and Lena, the discussions were led mainly by Heng and Hsiao, while Shudo translated for Okada. Charles was told that the account would be opened in Okada`s name and was shown the draft (P12) with a face value of [bull ]1.27 trillion, drawn on the Dai-Ichi Kangyo Bank (DKB). Documents (P14, P17 and P18) were also tendered by Okada and the accused persons to prove that Okada was the owner of the draft, P12.

13.Charles was told that the money for the draft came from the Emperor Showa`s fund and that Okada would like the draft cleared. Once it was cleared, further instructions would be given as to the use of the funds. Charles noticed that the amount on the draft was large and there was no payee`s name on it. This was the first time that he had come across such a draft.

14.Charles then verified the draft with the head of private banking who told him that `there was no such draft`. Charles then informed the accused persons that UBS could not clear the draft and advised them to return to the issuing bank, DKB, to get it cleared. Heng and Hsiao tried to persuade Charles and Lena to accept the draft but were unsuccessful.

15.A few days later, Heng called Lena to ask why UBS would not accept the draft. Lena said that it was not the bank`s policy to accept a draft which did not have a payee`s name. To this, Heng retorted that the American Express Bank could accept the draft. Thereafter, nothing more was heard at UBS from Heng or the appellants regarding the bank draft.

Visit to the Republic National Bank of New York

16.The appellants had also attempted to encash the draft at the Republic National Bank of New York (RNB). Stephanie Chan (Stephanie), assistant vice-president of private banking at RNB, testified that in early February 1996, Heng called her to find out about RNB`s private banking services and about share investments, and went to see her the following day.

17.On 14 February 1996, Heng called Stephanie again, this time to arrange a meeting, as he would be bringing investors from Japan and Taiwan, including a person related to the Japanese imperial family. The next day, Heng, Hsiao, Chao, Shudo and Okada went to RNB. Okada was introduced to Stephanie as the former daughter of the late Emperor Showa of Japan. Stephanie observed that the discussions were led mainly by Hsiao and Heng, with Shudo doing the translations for Okada. Stephanie was told that Okada wanted to transfer some funds out from Japan to Singapore as most Japanese banks were having financial problems.

18.Okada then signed an account opening form and presented the bank draft to Stephanie. This was the first time Stephanie had seen such a draft as there was no bearer`s name and she did not know how she would be able to verify it. However she decided to retain the draft for further checks and for clearance, and issued Okada an acknowledgment of receipt. She was told that the draft was to be encashed and the money credited into Okada`s account. Once that was completed, she was to contact Heng.

19.Stephanie handed the draft to John Hanson, the general manager of RNB, who duly passed it on to Daniel Teo, the compliance officer, for verification. Daniel Teo contacted DKB in Tokyo and was informed by them that they had never issued such a draft. DKB subsequently confirmed this in writing on 14 March 1996. Stephanie then called Heng to inform him that the draft was invalid to which Heng replied that that was `impossible`.

20.On 11 March 1996, Heng called Stephanie and informed her that DKB and the Central Bank of Japan had corresponded with the Monetary Authority of Singapore (MAS) in respect of the draft. Meanwhile, John Hanson notified MAS of the matter and sent to MAS copies of the bank draft and the documents furnished by Okada and her entourage.

21.On 12 March 1996, Hsiao, Heng, Chao and Okada arrived at RNB for a meeting which had been arranged by Heng. At the meeting, Heng produced a document entitled `Irrevocable Instruction` (P27). It contained instructions to transfer 15% of the value of the draft to Hsiao`s account which he had opened at UBS, once the draft was successfully encashed. Thereafter, officers from the Commercial Affairs Department moved in and detained the group members. Shudo and the first appellant ("Nomura") were detained later on.

Sadako Okada`s evidence

22.Okada claimed to be the illegitimate daughter of the late Emperor Showa, also known as Emperor Hirohito, and that the Emperor had bequeathed his wealth to her upon his demise. The funds for the bank draft came from a fund of [bull ]13.97 trillion known as the Sadako Okada Fund. Okada alleged that on 6 October 1989, there was a theft at DKB. As a result, the documents evidencing this fund and her identity were stolen. Moreover, there were altogether 11 bank drafts for [bull ]1.27 trillion each (of which P12 was one) but she had been cheated of the other ten by DKB. P12 was received by her on 19 May 1989.

23.Okada testified that she wanted to convene an open hearing in the USA with regard to the theft of the funds and documents at DKB but needed some money for her expenses. She had no funds and thus consulted Hsiao who informed her that she would need about [bull ]2.5 million for her expenses. Okada then approached Nomura whom she had known for eight years and borrowed a sum of about [bull ]4 million from him.

24.On 30 January 1996, Okada came to Singapore with the draft, P12, accompanied by Shudo, with the view of obtaining a loan to fund her trip to the USA. They went to the American Express Bank and presented P12 to the bank officer but the draft was rejected. Okada came to Singapore again on 14 February 1996 on the representation from Hsiao that she could obtain a loan from one Shao Shuk Tei who was living in Singapore. Hsiao said that Shao Shuk Tei had remitted the funds into an account at UBS for the purpose of providing the loan.

25.According to...