Ong Boon Kheng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 07 November 2008
• Neutral Citation: [2008] SGHC 199
• Court: High Court (Singapore)
• Year: 2008
• Published date: 17 November 2008
• Plaintiff Counsel: Michael Khoo SC and Josephine Low (Michael Khoo & Partners)
• Defendant Counsel: Lau Wing Yum and David Chew Siong Tai (Deputy Public Prosecutors)
• Subject Matter: Criminal Procedure and Sentencing
• Citation: [2008] SGHC 199

7 November 2008

Tay Yong Kwang:

1 By this application, the applicant seeks an order that the following six questions of law be reserved for the decision of the Court of Appeal pursuant to s 60 of the Supreme Court of Judicature Act (“SCJA”) (Cap 322, 2007 Rev Ed):

1 Whether, under the provisions of section 180(h) and (i) of the Criminal Procedure code (Cap 68) (“CPC”) where the totality of the prosecution evidence consists of different versions on an essential ingredient of the charge, the trial judge has to first amend the charge before calling on the accused to enter on his defence to the charge and/or to afford the accused an opportunity to recall prosecution witnesses under section 167 of the CPC?

2 Whether, in a prosecution where an accused is charged for the offence of consenting to the commission by a company of making a misleading statement under section 331(1) of the Securities & Futures Act (Cap.289), where the company has not been prosecuted for the predicate offence and/or tried jointly with the accused, the trial judge must be satisfied at the close of the prosecution case that the predicate offence by the company has been established by the prosecution beyond reasonable doubt?

3 Whether the test propounded by the Privy Council in Haw Tua Tau v PP [1981] 2 MLJ 149 merely requires a trial judge, at the close of the prosecution case to make only a “minimum evaluation” or “minimum assessment” of the prosecution evidence to determine whether the prosecution has established a case against the accused which if unrebutted would warrant the conviction of the accused under section 180 (f) of the CPC?

4 If the Answer to Question 3 is Yes, whether the “minimum evaluation” or “minimum assessment” of the prosecution evidence entails the court having to find the necessary minimum evidence at the close of the prosecution case to support each and every ingredient of the charge?

5 Whether a trial judge is compelled or obliged to draw an adverse inference as to the guilt of the accused if he elects not to give evidence when called upon to do so under section 180(k) of the CPC?

6 Whether there would be a miscarriage of justice if a trial judge finds an accused person guilty on a charge different from that which the accused has been charged with, without first amending the charge on the basis of disputed evidence despite being invited by the prosecution and defence to amend the charge?

2 The applicant was convicted on four charges under the Securities and Futures Act (Cap 289, 2002 Rev Ed) by Specialist District Judge Tan Cheng Han (“the DJ”) after a trial in the Subordinate Courts. The charges were as follows:

FIRST CHARGE (Amended)

You, ONG BOON KHENG, are charged that you, on or about 24 July 2003, in Singapore, as Chief Executive Officer of Informatics Holdings Ltd (“Informatics”), a company listed on the Mainboard of the Singapore Exchange Securities Trading Ltd, which committed an offence of making a statement, namely, Informatics’ unaudited first quarter financial statement for the period ended 30 June 2003, released via MASNET on 24 July 2003, that was misleading in a material particular, to wit, the net profit before tax was overstated by about $5.452 million, and was likely to induce other persons to purchase certain securities, namely, Informatics shares, when at the time Informatics made the statement, it ought reasonably to have known that the statement was misleading in a material particular, consented to the commission of the above offence, and you have thereby committed an offence under Section 331(1) read with Section 199(b)(ii) punishable under Section 204(1) of the Securities & Futures Act (Chapter 289, 2002 Revised Edition).

SECOND CHARGE (Amended)

You, ONG BOON KHENG, are charged that you, on or about 29 October 2003, in Singapore, as Chief Executive Officer of Informatics Holdings Ltd (“Informatics”), a company listed on the Mainboard of the Singapore Exchange Securities Trading Ltd, which committed an offence of making a statement, namely, Informatics’ unaudited second quarter financial statement for the period ended 30 September 2003, released via MASNET on 29 October 2003, that was misleading in a material particular, to wit, the net profit before tax was overstated by about $8.78 million, and was likely to induce other persons to purchase certain securities, namely, Informatics shares, when at the time Informatics made the statement, it ought reasonably to have known that the statement was misleading in a material particular, consented to the commission of the above offence, and you have thereby committed an offence under Section 331(1) read with Section 199(b)(ii) punishable under Section 204(1) of the Securities & Futures Act (Chapter 289, 2002 Revised Edition).

THIRD CHARGE (Amended)

You, ONG BOON KHENG, are charged that you, on or about 19 January 2004, in Singapore, as Chief Executive Officer of Informatics Holdings Ltd (“Informatics”), a company listed on the Mainboard of the Singapore Exchange Securities Trading Ltd, which committed an offence of making a statement, namely, Informatics’ unaudited third quarter financial statement for the period ended 31 December 2003, released via MASNET on 19 January 2004, that was misleading in a material particular, to wit, the net profit before tax was overstated by about $1.54 million, and was likely to have the effect of stabilising the market price of certain securities, namely, Informatics shares, when at the time Informatics made the statement, it ought reasonably to have known that the statement was misleading in a material particular, consented to the commission of the above offence, and you have thereby committed an offence under Section 331(1) read with Section 199(c)(ii) punishable under Section 204(1) of the Securities & Futures Act (Chapter 289, 2002 Revised Edition).

FOURTH CHARGE

You, ONG BOON KHENG, are charged that you, on or about 14 April 2004, in Singapore, as Chief Executive Officer of Informatics Holdings Ltd (“Informatics”), a company listed on the Mainboard of the Singapore Exchange Securities Trading Ltd, with intent to deceive, knowingly and wilfully permitted the making of a misleading statement, to wit, a profit warning statement issued by Informatics via MASNET on 14 April 2004 stating,

i. ‘The overstatement of revenue and profit was discovered in the course of closing the books for the year ended 31 March 2004 and the year end audit’; and

ii. ‘The directors and senior management of Informatics were not aware of the overstatement of revenue and profit at the time of the announcement of the unaudited results for the period ended 31 December 2003’,

to a securities exchange, namely, the said Singapore Exchange Securities Trading Ltd, relating to the affairs of Informatics Holding Ltd, and you have thereby committed an offence punishable under Section 330 of the Securities & Futures Act (Chapter 289, 2002 Revised Edition).

3 The factual background to these charges is set out very briefly here. For its financial year (“FY”) 2004, Informatics Holdings Limited (“the company”) recognised revenue from various sources which resulted in inflated amounts of revenue announced on MASNET in the first three quarters of that FY. On 14 April 2004, the company issued a profit warning on MASNET, the material terms of which are set out in the fourth charge above. The trading of the company’s shares was suspended for 3 weeks after the profit warning. The applicant was at the material times the Chief Executive Officer of the company.

4 The prosecution led evidence pertaining to the four charges. At the close of the prosecution’s case, there were discrepancies in the amounts of overstatement alleged in the first three charges. The applicant submitted that it was not the duty of the defence to explain the discrepancies. The applicant argued that the Court of Appeal in Ng Theng Shuang v PP [1995] 2 SLR 36 did not reflect correctly the test in the Privy Council decision of Haw Tua Tau v PP [1980-1981] SLR 73 (“Haw Tua Tau”) and invited the DJ to re-visit the “minimum evaluation of the evidence” test mentioned in the Court of Appeal’s judgment (at page 41). The applicant also argued that the prosecution had to prove beyond reasonable doubt the predicate offences of the company alleged in the first three charges at the close of the prosecution’s case.

5 The DJ applied the test laid down in Haw Tua Tau as expounded by subsequent local case law and called upon the applicant to enter on his defence in respect of all 4 charges. The applicant elected not to testify and not to call any witnesses on his behalf. After due consideration of the evidence and the submissions, the DJ found the applicant guilty...