Pittis Stavros v PP

• Jurisdiction: Singapore
• Judgment Date: 13 March 2015
• Date: 13 March 2015
• Docket Number: Magistrate's Appeal No 82 of 2014
• Court: High Court (Singapore)

Pittis Stavros

Plaintiff

and

Public Prosecutor

Defendant

[2015] SGHC 67

See Kee Oon JC

Magistrate's Appeal No 82 of 2014

High Court

Criminal Law—Offences—Property—Criminal breach of trust—Aggravated form of criminal breach of trust by clerk or servant—Misappropriation of marine fuel oil by chief engineer of ship—Chief engineer owing legal obligations not to charterers of ship but owners—Charterers of ship not having direct legal recourse against chief engineer in event of his misconduct—Owners of ship and not charterers being responsible for chief engineer's salaries—Whether chief engineer a servant of charterers—Section 408 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Conviction in court below substituted on appeal with conviction for less serious offence—Whether sentence should be reduced

The appellant was the chief engineer of a large cargo ship (‘the Vessel’) that needed to be supplied with marine fuel oil (‘MFO’). The Vessel was chartered by V 8 Pool Inc (‘the charterers’) under a time charter. Arrangements were made for a bunker barge to supply the Vessel with 500 mt of MFO. The Prosecution's case was that the appellant initiated and carried out a ‘buy-back’ or ‘short-supply’ scheme in which the Vessel was supplied with only 300 mt of MFO. The remaining 200 mt stayed on board the bunker barge and was eventually returned to the supplier of the MFO, and documents were doctored to cover up the shortfall in MFO supplied. The supplier was paid for having supplied 500 mt despite having supplied something less than that, and the appellant was to have received a sum of money from the supplier for his role in this scheme.

The charge against the appellant averred that, as a servant of the charterers, he had been entrusted in that capacity with dominion over MFO belonging to the charterers, and had dishonestly misappropriated 200 mt of the MFO. The charge stated that he had thereby committed criminal breach of trust (‘CBT’) by clerk or servant, an offence under s 408 of the Penal Code (Cap 224, 2008 Rev Ed). This offence is an aggravated form of CBT simpliciter as defined in s 405 of the Penal Code.

The alleged ‘buy-back’ scheme required the participation of two other people, viz,the bunker clerk and the bunker surveyor involved in the supply transaction. Both of them were prosecution witnesses and gave evidence that incriminated the appellant and themselves. The District Judge below convicted the appellant on the charge and sentenced him to 18 months' imprisonment.

On appeal, the appellant put forward three broad arguments. The first was that he had not in fact been involved in any such ‘buy-back’ scheme as alleged and that the District Judge had erred in finding otherwise. The second was that, even if he had been involved in such a scheme, he could not be guilty of any CBT offence because he had at no point been entrusted with dominion over the misappropriated 200 mt of MFO. The MFO had at all times remained on board the bunker barge outside of his physical control, and the MFO had never belonged to the charterers. The third was that, even if he was guilty of CBT simpliciter,he could not be guilty of the aggravated form of the offence because he was not a servant of the charterers. He contended that he was, at best, a servant of the Vessel's owners and no more.

Held, allowing the appeal in part:

(1) As to the appellant's first argument, although there were inconsistencies in the evidence of the prosecution witnesses, these were all minor and not significant. The District Judge was entirely correct not to place too much emphasis on the minute details and instead to consider the broad possibilities and the likelihood of each possibility being true. There was ample basis for the District Judge's findings that there had been a ‘buy-back’ scheme and that the appellant had participated in it: at [28] to [37] .

(2) As to the appellant's second argument, even though the appellant had not had physical control over the misappropriated 200 mt of MFO, and even though the MFO had not belonged to the charterers at the time, the fact was that the charterers had had a right to take possession of the MFO, which right they had then delegated to or conferred upon the appellant. Such a delegation was sufficient to constitute an entrustment by the charterers to the appellant of dominion over the MFO: at [38] to [45] .

(3) As to the appellant's third argument, the usual incidents of a master-servant relationship were absent from the relationship between the appellant and the charterers. The appellant's legal obligations were owed to the Vessel's owners and not the charterers; he received salaries and job-related benefits from the owners and not the charterers; and the charterers' legal recourse in the event of the appellant's misconduct was against the Vessel's owners and not the appellant himself. Hence the appellant was not a servant of the charterers and for that reason he was guilty only of CBT simpliciter and not the aggravated form of CBT by clerk or servant: at [47] to [57] .

(4) Since the sentence of 18 months' imprisonment imposed by the District Judge was in respect of an aggravated form of CBT, the sentence imposed on him should be reduced. In the circumstances and taking into account the relevant precedents, 14 months' imprisonment was an appropriate sentence: at [59] to [71] .

Angliss Singapore Pte Ltd v PP [2006] 4 SLR (R) 653; [2006] 4 SLR 653 (refd)

Hon Chi Wan Colman v PP [2002] 2 SLR (R) 821; [2002] 3 SLR 558 (refd)

Karen Teo DAC 902611/2014 and others (refd)

Ong Chee Eng v PP [2012] 3 SLR 776 (refd)

Poh Boon Kiat v PP [2014] 4 SLR 892 (refd)

R v Negus (1873) LR 2 CCR 34 (distd)

Soh Wei Siang DAC 047766/2013 and others (refd)

Penal Code (Cap 224, 2008 Rev Ed) s 408 (consd) ;ss 403, 405, 406

Shashi Nathan, Tania Chin and Jeremy Pereira (Khattar Wong LLP) for theappellant

Sanjiv Vaswani (Attorney-General's Chambers) for the respondent.

Judgment reserved.

See Kee Oon JC

1 This appeal concerns what may, for convenience, be called a ‘buy-back’ or ‘short-supply’ arrangement in the context of the supply of marine fuel oil (‘MFO’) to sea-going vessels. The appellant was the chief engineer of a vessel called the MV Sakura Princess (‘the Vessel’). On 10 January 2013, a bunker barge was deployed to supply the Vessel with 500 mt of MFO. The appellant faced a single charge arising out of this ‘buy-back’ or ‘short-supply’ arrangement. This charge was for the offence of criminal breach of trust (‘CBT’) by clerk or servant under s 408 of the Penal Code (Cap 224, 2008 Rev Ed), and it reads as follows:

You, [the appellant], are charged that you, on 10 January 2013, in Singapore, being a servant of V 8 Pool Inc., to wit, the Chief Engineer of MV Sakura Princess, a marine vessel chartered by V 8 Pool Inc., and in such capacity being entrusted with dominion over property belonging to V 8 Pool Inc., namely Marine Fuel Oil, did dishonestly misappropriate about 200 metric tonnes of Marine Fuel Oil by engaging in a buy-back scheme, and in so doing you did commit criminal breach of trust in respect of such property, and as such you have thereby committed an offence punishable under Section 408 of the Penal Code, Chapter 224.

2 The appellant claimed trial to this charge. The Prosecution's case was that the appellant initiated an arrangement in which the Vessel would be supplied with only 300 mt of MFO. The remaining 200 mt would be kept by the supplier of the MFO, and documents and records would be doctored to cover up the shortfall in MFO supplied. Thus the supplier would be paid for having supplied 500 mt despite having supplied something significantly less than that, and the appellant would receive a sum of money from the supplier for his role in this scheme.

3 Following the trial, the district judge (‘the District Judge’) convicted him on the charge and sentenced him to 18 months' imprisonment. The District Judge's grounds of decision are published as PP v Pittis Stavros [2014] SGDC 371 (‘the GD’). The appellant has appealed against both conviction and sentence.

Undisputed facts

4 Ishall set out first the facts which do not appear to be in dispute. The Vessel is a large cargo ship owned by Universal Reserve SA. The operators of the Vessel - also known as the technical managers - were Tsakos Columbia Shipmanagement SA (‘Tsakos’). As operators, Tsakos provided the Vessel with its officers and crew, including the chief engineer: hence the appellant was an employee of Tsakos. At the material time, the Vessel was chartered by V 8 Pool Inc (‘V 8 Pool’) under a time charter.

5 On 8 January 2013, the Vessel entered Singapore waters after a journey of almost a month that commenced on 12 December 2012 from the port of Nikiski in Alaska. The long voyage had depleted the Vessel's fuel reserves and so the charterers, V 8 Pool, made arrangements for the Vessel to be supplied with 1,800 mt of MFO. The supplier of MFO was to be a company called Costank Singapore Pte Ltd (‘Costank’).

6 On 10 January 2013, the Vessel entered the port for bunkering, ie, refuelling. The plan was to supply the Vessel with 500 mt of MFO that afternoon, with the remaining 1,300 mt to be supplied later. In order to deliver the MFO to the Vessel, Costank chartered a bunker barge called the ‘Coastal Saturn’ - which I shall refer to as ‘the Barge’ - from Heng Tong Fuels and Shipping Pte Ltd (‘Heng Tong’).

7 In the early afternoon of 10 January 2013, one Seah Seng Chuan (‘Seah’) went on board the Vessel. Seah was the bunker surveyor and his role was to check the amount of MFO on board the Vessel and the Barge before and after the bunkering process, so as to ascertain that the correct amount of MFO had been transferred between the two. He would check the amount of MFO in the various fuel tanks on board the two vessels by dropping a sounding tape into each tank to...