Public Prosecutor v Leong Wai Nam

• Judge: Tay Yong Kwang J
• Judgment Date: 18 December 2009
• Neutral Citation: [2009] SGHC 283
• Citation: [2009] SGHC 283
• Defendant Counsel: Leonard Loo (Leonard Loo LLP)
• Published date: 14 January 2010
• Plaintiff Counsel: Lee Lit Cheng and Ong Luan Tze, DPPs
• Date: 18 December 2009
• Docket Number: Magistrate's Appeal No 230 of 2009
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing

18 December 2009

Tay Yong Kwang J:

Introduction

1 This case concerns an appeal by the Public Prosecutor against the sentence imposed on the respondent. The respondent, an advocate and solicitor aged 41, pleaded guilty before a District Court and was convicted on the following six charges:

DAC 10001/2009

This charge was one of criminal breach of trust (“CBT”) of a sum of $48,000 as an attorney in May/June 2007, an offence punishable under s 409 Penal Code (Cap 224, 1985 Rev Ed).

DAC 10003/2009

This concerned CBT of $1,800 between December 2006 and May 2007, an offence under s 406 Penal Code.

DAC 10004/2009

The third charge alleged that the respondent, between June 2005 and July 2007, committed CBT of $1,300 as an agent, an offence under s 409 Penal Code.

DAC 10009/2009

The fourth charge related to cheating someone out of $4,300 between February and April 2008, an offence under s 420 Penal Code (Cap 224, 2008 Rev Ed).

DAC 10010/2009

This alleged CBT of $1,500 as an agent sometime in November 2005, an offence under s 409 Penal Code.

DAC 10014/2009

This charge was also under s 409 Penal Code as it concerned CBT of $4,000 as an agent. The offence was committed between August and December 2005.

2 Save for DAC 10009/2009 (“the cheating charge”), all the other five offences set out above took place before the 2007 amendments to the Penal Code (“the new Penal Code”) came into operation on 1 February 2008. S 406 provided for a maximum of 3 years’ imprisonment, a fine or both while s 409 provided for life imprisonment, or imprisonment of up to 10 years and a liability to fine. The present s 420 in the new Penal Code, which applies to the cheating charge, provides for 10 years’ imprisonment and a liability to fine.

3 With the consent of the respondent, ten other charges were taken into consideration for the purpose of sentence. These related to offences under s 406 (two charges), s 409 (seven charges) and s 420 (one charge) Penal Code involving various amounts of money, with all offences having taken place before the new Penal Code came into force.

The statement of facts

4 The respondent became an advocate and solicitor on 26 March 1994. He last practised as one in October 2007 and his practising certificate expired on 31 March 2008.

5 The respondent worked in 12 law firms between 1998 and 2007. He had profit-sharing agreements with the law firms involved. He also had a profit-sharing agreement with his friend, Benjamin. Benjamin was a lawyer practising in a local law firm (“the law firm”). He did not relish meeting clients. He therefore entered into a verbal agreement with the respondent whereby the respondent would meet clients and then relay their instructions to Benjamin. Benjamin would then carry out the necessary legal work. If any client had to go to court, the respondent would represent him.

6 Benjamin would issue invoices to the clients. Although the respondent was not employed by the law firm, Benjamin trusted him to collect the legal fees from the clients and pay them to the law firm. When Benjamin received his share of the legal fees from the law firm, he would deduct his costs for his secretary and then share the proceeds with the respondent equally.

7 The five CBT charges set out above essentially concerned the payment of legal fees by clients to the respondent as an advocate and solicitor, who misappropriated the cash for his own use or deposited the cheques or cash into his personal account and then used the money for his personal expenses. Only the second charge (DAC 10003/2009) concerned the profit-sharing arrangement between the respondent and Benjamin.

8 On 16 November 2007, the respondent lodged a police report against himself for having misappropriated funds from his clients. This was after he was confronted by his friends, including Benjamin.

9 In respect of the cheating charge, in November 2007, the respondent was engaged by Lim Kek Lye (“Lim”), a director of Kian Hong Aluminium Works Pte Ltd (“KHAW”), to pursue two debts of $24,000 and $42,000 owed by two other companies to KHAW and to Jia Hong Aluminium Works (“JHAW”) respectively. By the end of October 2007, the respondent was no longer in practice. He did not inform Lim about this but proceeded to make several requests for payment of legal fees.

10 In December 2007, the respondent informed Lim that he had managed to garnish the bank accounts of both debtors. Lim was pleased with the outcome and continued paying the legal fees requested by the respondent. Between February and April 2008, Lim paid cash amounting to $4,300 to the respondent who had requested the money for purported court expenses and legal fees.

11 The truth was that the respondent did not do any legal work for Lim at all. He had deceived Lim into thinking that he was acting for KHAW and JHAW in the two matters and had thereby induced Lim to pay him the $4,300 in question.

12 The total amount involved in the 16 charges was $93,370.38. Partial restitution of $25,000 has been made.

The accused’s antecedents

13 The respondent did not have any criminal record.

The decision of the District Judge (“DJ”)

14 The DJ considered the mitigating factors raised on the respondent’s behalf. These included the fact that he had pleaded guilty, that he had no excuses for his offences and that he would have to face disciplinary proceedings by the Law Society of Singapore. Further, the respondent had co-operated with the police in their investigations and had made partial restitution before he surrendered himself.

15 The DJ opined that the respondent had betrayed the trust placed in him as an advocate and solicitor and that a deterrent sentence was called for. In imposing a deterrent sentence, he was mindful that it should be tempered by proportionality in relation to the severity of the offences committed as well as by the moral and legal culpability of the offender (citing Tan Kay Beng v PP [2006] 4 SLR 10). He also had regard to the “totality principle” so as not to impose a “crushing sentence” (citing Kanagasuntharam v PP [1992] 1 SLR 81).

16 The DJ imposed the following sentences (in respect of the charges in the order in which they have been set out at [1] above):

(a) 18 months’ imprisonment;

(b) 6 months’ imprisonment;

(c) 10 months’ imprisonment;

(d) 14 months’ imprisonment;

(e) 10 months’ imprisonment;

(f) 12 months’ imprisonment.

He ordered the imprisonment terms for (a), (d) and (f) to run consecutively with effect from 17 February 2009, making a total of 44 months’ imprisonment.

The prosecution’s submissions on appeal

17 The prosecution argued that the sentence imposed by the DJ was manifestly inadequate. It submitted that offences involving...