Ow Yew Beng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 12 December 2002
• Neutral Citation: [2002] SGHC 301
• Docket Number: Magistrate's Appeal No 30 of 2002
• Date: 12 December 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: Irving Choh Thian Chee (CTLC Law Corporation)
• Citation: [2002] SGHC 301
• Defendant Counsel: David Chew Siong Tai (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Receiving stolen property,s 411 Penal Code (Cap 224, 1985 Rev Ed),s 411 read with s 24 Penal Code (Cap 224, 1985 Rev Ed),Property,Test for "reason to believe" property to be stolen,Test for dishonesty,Criminal Law

Judgment

GROUNDS OF DECISION

The charge

This was an appeal from the judgment of district judge Wong Pui Kay. The appellant claimed trial to 44 charges under s 411 of the Penal Code (Cap 224) for dishonestly retaining cheques which he had reason to believe were stolen from Welgoal Singapore Pte Ltd (‘Welgoal’). The offence is punishable with imprisonment for a term which may extend to five years, or with fine, or with both.

2 Section 411 of the Penal Code reads as follows:

Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment for a term which may extend to 5 years, or with fine, or with both; and if the stolen property is a motor vehicle or any component part of a motor vehicle as defined in section 379A shall be punished with imprisonment for a term of not less than 6 months and not more than 5 years and shall also be liable to fine.

3 The appellant was convicted on 22 December 2001 on the first 40 charges and sentenced to a total of 44 months imprisonment. He was acquitted of the remaining four charges on the ground that the prosecution had failed to adduce sufficient evidence to prove its case against him beyond a reasonable doubt. The appellant appealed against both conviction and sentence.

Undisputed facts

4 The appellant’s wife, Ms Tho Bee Choo (‘DW 2’) worked as an Assistant Sales Manager at Welgoal. Welgoal’s director, Chen Tsu Wang (‘PW 2’) testified that the nature of his job required him to travel overseas on a frequent basis. For business efficiency, he would pre-sign some ‘blank’ cheques before his overseas trips and entrust them to DW 2 so that she could make payments on Welgoal’s behalf.

5 DW 2 however used these pre-signed cheques to issue cash cheques as well as cheques payable to herself and to the appellant, using some of the proceeds for her own purposes and also to repay the appellant’s debts. Her wrongdoings were subsequently discovered and she was sentenced to a six-year imprisonment term upon conviction on three charges of criminal breach of trust as a servant under s 408 of the Penal Code for an aggregate sum exceeding $ 1 million. She was still serving the sentence at the time of hearing of the present appeal.

6 The charges in the present appeal concerned 40 such pre-signed cheques which DW 2 had instructed the appellant to cash over a 16-month period from June 1998 to October 1999. Twenty-seven of these were cash cheques, 12 were made out to the appellant and one was made out to DW 2 or to ‘bearer’. Some of these cheques were in US dollars while the rest were in Singapore dollars. When converted to Singapore dollars, the cheques made out to the appellant were worth around $ 78,431 while the value of all the cheques which the appellant cashed was around $ 270,000. It was not disputed that the appellant had no business dealings with Welgoal that might have justified Welgoal in making such payments to the appellant.

7 The appellant conceded in the court below that the physical elements of the offence were present, namely that he, by accepting the cheques from DW 2 and cashing them, had retained stolen property in the form of those cheques and their proceeds. However, the appellant argued that the mental elements of the offence were absent in that he was, firstly, not dishonest and secondly, had no reason to believe that the cheques were stolen from Welgoal. The judge held however that the requisite mental elements were present and convicted him.

Issues arising on appeal

8 The appellant relied on several grounds in his appeal. Some of them overlapped and could be summarised into three broad grounds, namely,

(a) The judge had erred in rejecting the defence submission of no case to answer at the close of the prosecution’s case and calling for the defence.

(b) The judge had erred in holding that on the totality of the evidence the prosecution had established its case beyond a reasonable doubt.

(c) The sentences imposed were manifestly excessive.

Was there a case to answer at the end of the prosecution’s case?

9 Since the presence of the physical elements of the offence was not disputed, the issue here was whether there was prima facie evidence that the appellant had been dishonest and had reason to believe that those cheques were stolen property: Haw Tua Tau v PP [1980-1981] SLR 73

10 ‘Reason to believe’ was defined in Koh Hak Boon & Ors v PP [1993] 3 SLR 427 as involving a lesser degree of conviction than certainty but a higher one than speculation. The test is whether a reasonable person, in the position of the appellant (i.e. including his knowledge and experience), would have thought it probable that the property he retains is stolen property. It is irrelevant whether the appellant himself actually thought it probable: his state of mind is only relevant to the ‘knowing’ limb (which the present charges did not rely on) and not to the ‘reason to believe’ limb in s 411. The test of ‘reason to believe’ is hence objective but conducted from the vantage point of someone with the appellant’s knowledge and experience.

11 ‘Dishonestly’ is defined in s 24 of the Penal code as:

Whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, is said to do that thing dishonestly.

Section 411, read with s 24, clearly envisages that an individual can be dishonest, ie having an intention to cause wrongful gain or loss even though he has no actual knowledge, but only reason to believe that the property was stolen. It can hence be inferred that ‘dishonesty’ in the context of s 411 is not restricted to mean an intention to cause gain or loss which the appellant knows to be wrongful. Otherwise, dishonesty could never be found if an accused merely has reason to believe, but not knowledge, that the property was stolen since, without such knowledge, he could not have known that the gain or loss was wrongful. Logically, dishonestly under s 411 would have to bear the broader meaning of an intention to cause gain or loss which the accused either knows or has reason to believe was wrongful.

12 Ordinarily, the two mental elements of ‘dishonesty’ and ‘knowing or having reason to believe that the property was stolen’ go together. A person who retains property knowing it to be stolen would naturally possess an intention to cause gain or loss which he knows to be wrongful. Similarly, a person who retains property which he has reason to believe is stolen would normally also have an intention to cause gain or loss which he has reason to believe is wrongful. There may however be some situations when these mental elements are not co-extensive. For instance, if a person’s purpose of retention is to hand the property (which he knows or has reason to believe is stolen) to the police for investigations, then he is not dishonest since he has no intention to cause any wrongful loss or gain to anyone at all. On the present facts, however, it was not disputed that...