PP v Tan Cheng Yew

• Jurisdiction: Singapore
• Judgment Date: 30 November 2012
• Date: 30 November 2012
• Docket Number: Magistrate's Appeals Nos 97 of 2011/01 and 97 of 2011/02
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Tan Cheng Yew and another appeal

Defendant

[2012] SGHC 241

Lee Seiu Kin J

Magistrate's Appeals Nos 97 of 2011/01 and 97 of 2011/02

High Court

Criminal Law—Property—Cheating—Lawyer representing to client that moneys would be used for particular purpose—Lawyer using moneys for purpose other than represented purpose—Whether offence of cheating was made out under s 420 Penal Code (Cap 224, 1985 Rev Ed)—Section 420 Penal Code (Cap 224, 1985 Rev Ed)—Criminal Law—Property—Criminal breach of trust—Lawyer committing criminal breach of trust—Lawyer acting as express trustee on behalf of client—Whether lawyer acting as express trustee was doing so ‘in the way of his business’ as attorney under s 409 Penal Code (Cap 224, 1985 Rev Ed)—Section 409 Penal Code (Cap 224, 1985 Rev Ed)—Criminal Law—Property—Criminal breach of trust—Lawyer committing criminal breach of trust—Lawyer undertaking sale of shares on behalf of client—Whether lawyer undertaking commercial transactions was doing so ‘in the way of his business’ as attorney under s 409 Penal Code (Cap 224, 1985 Rev Ed)—Section 409 Penal Code (Cap 224, 1985 Rev Ed)—International Law—Extradition—Speciality—Sending state accepting that extradition was on basis of requisition rather than arrest warrant—Whether court of requesting state had power to go behind discretion exercised by Executive of sending state—International Law—Extradition—Speciality—Prosecution amending charges after extradition—Extradited person claiming that speciality rule was breached by amendments—Whether amendments satisfied Art VII Singapore-Germany Extradition Treaty—Article VII Singapore-Germany Extradition Treaty—International Law—Extradition—Speciality—Prosecution amending charges after extradition—Extradited person claiming that speciality rule was breached by amendments—Whether amendments satisfied s 17 (a) Extradition Act (Cap 103, 2000 Rev Ed)—Section 17 (a) Extradition Act (Cap 103, 2000 Rev Ed)—Statutory Interpretation—Definitions—Whether word ‘attorney’ in s 409 Penal Code (Cap 224, 1985 Rev Ed) included advocate and solicitor—Section 409 Penal Code (Cap 224, 1985 Rev Ed)

Tan Cheng Yew (‘TCY’) was charged with six charges under the Penal Code (Cap 224, 1985 Rev Ed) (‘the Penal Code’). He claimed trial to two charges of criminal breach of trust (‘CBT’) under s 409 of the Penal Code (‘s 409’) and two charges of cheating under s 420 of the Penal Code (‘s 420’). The first charge(‘the First Charge’) and the third charge (‘the Third Charge’) were for the commission of CBT in the way of his business as an attorney. The second charge (‘the Second Charge’) and the fourth charge (‘the Fourth Charge’) were for cheating.

The four charges arose from two main transactions: (a)the loan to the Central Christian Church (‘CCC’), of which Tommy Tan and his family (‘the Tan Family’) were members, to enable CCC to buy land to build a church; and (b)the sale of some shares in Poh Lian Holdings Limited (‘Poh Lian’).

TCY was an advocate and solicitor in Singapore, practising in the firm of Tan Cheng Yew& Partners. In 2001, Tan Cheng Yew & Partners merged with Tan Jin Hwee, Eunice & Lim Choo Eng (‘Tan & Lim’). Following TCY's introduction to Tommy Tan, TCY became the Tan Family's lawyer and dealt with all their legal matters.

In respect of the First Charge, Shankar, Nandwani & Partners, acting for CCC, had forwarded a cheque for S$1.5m to TCY on 30 July 2001. TCY deposited this cheque into his Development Bank of Singapore (‘DBS’) fixed deposit account on 7 August 2001.

In respect of the Second Charge, Tommy Tan had issued a DBS cheque dated 5 February 2002 for the sum of S$480,000 to TCY. TCY deposited it into his POSB account.

In respect of the Third Charge, Tommy Tan had, on behalf of the Tan Family, entered into a memorandum dated 24 December 2000 (‘Memorandum 1’) with Tan Cheng Yew & Partners, appointing TCY to negotiate the sale of 24 million shares in Poh Lian (‘the Poh Lian shares’). Pursuant to Memorandum 1, the Poh Lian shares were transferred to TCY. TCY subsequently sold nine million of the Poh Lian shares and received a sum of S$1,940,724.97 from the sale. He deposited S$1,646,663.46 into his SCB account and the balance of S$294,061.51 into his POSB account.

In respect of the Fourth Charge, TCY signed a deed of trust on 25 May 2002 wherein he acknowledged that he was holding A$3 m (comprising S$1,940,724.97 being the proceeds of the sale of the Poh Lian shares and a sum of S$900,000) on behalf of the Tan Family for the purpose of investing the moneys with an Australian bank. Tommy Tan then issued a DBS bank cheque for S$900,000 to TCY who deposited it into his fixed deposit account. This S$900,000 forms the subject matter of the Fourth Charge.

TCY left Singapore in 2003 and was untraced for some six years. On 2 June 2009, he was arrested at Munich Airport in Germany, pursuant to a warrant of arrest issued by a magistrate in Singapore on 28 November 2006 (‘the Arrest Warrant’). The Arrest Warrant provided that TCY faced five charges: one charge under s 409 and four charges under s 420.

As TCY resisted extradition, extradition proceedings were commenced against him in Munich pursuant to a request for extradition made by Mr KShanmugam, the Minister for Law, dated 6 July 2009 (‘the Requisition’). The Requisition provided that TCY was charged with six charges: four charges under s 409 and two charges under s 420. On 21 August 2009, the Federal Constitutional Court of Germany allowed the extradition of TCY to Singapore (‘the Extradition Order’). TCY returned to Singapore on 22 October 2009.

TCY then stood trial in Singapore. The trial judge (‘the District Judge’) convicted him on all four charges and sentenced him to a total of nine years' imprisonment. TCY appealed his conviction on the four charges and the Prosecution appealed the sentence imposed on the ground that it was manifestly inadequate.

Held, allowing MA 97/2011/01 and dismissing MA 97/2011/02:

(1) Extradition was an act involving the exercise of sovereign power - albeit in compliance with any domestic laws governing procedures - and the Executive was therefore given the prerogative to determine the scope and conditions of extradition. This court was not in a position to go behind the discretion exercised by the Executive of another country. Both the judicial and executive arms of Germany confirmed that under their internal law or procedure, extradition was not based on the particular charge stated in the requisition but the factual circumstances surrounding the charge: at [40], [42] and [67].

(2) On the totality of the documents adduced as evidence, TCY was extradited on the basis of the factual circumstances set out in the Statement of Facts accompanying the Requisition, and not the charges set out in the Arrest Warrant: at [40] and [42].

(3) The only restriction on prosecution after extradition was contained in s 17 (a)of the Extradition Act (Cap 103, 2000 Rev Ed). Section 17 (a) of the Extradition Act (‘s 17 (a)’) set out two provisos on when an extradited person might be tried for an offence: the first related to the narrow offence for which the requisition for surrender had been made (‘the first proviso of s 17 (a)’), and the second ostensibly broader limb allowed prosecution for an offence for which the extradited person might be convicted of upon proof of the same facts on which the requisition was based (‘the second proviso of s 17 (a)’): at [48], [51] and [70].

(4) Given that Singapore followed a dualist position, Art VII of the Singapore-Germany Extradition Treaty could not apply directly to circumscribe the prosecutor's power to charge an extradited individual; instead, it was the Extradition Act that gave domestic effect to the entirety of Singapore's obligations to other states under the various extradition treaties Singapore had entered into: at [56].

(5) While the courts should endeavour to interpret a domestic statute in accordance with the state's treaty obligations under international law, this canon of interpretation had defined limits. The words of s 17 (a)were not abstruse and should be given their plain and natural meaning. Even the most generous reading of that provision would not allow the second proviso of s 17 (a) to be struck out: at [59] and [60].

(6) The words ‘or any other offence of which he could be convicted upon proof of the facts on which the requisition was based’ in s 17 (a)clearly permitted prosecution of any other offence so long as it was based on the same facts: at [70].

(7) The Second Charge was the only charge that was not amended during the proceedings below. It satisfied the precondition for prosecution under s 17 (a): at [71].

(8) The amendment of the s 409 charges from the charges listed in the Requisition, ie,that TCY committed CBT in his capacity as an attorney to the present charges that TCY committed CBT in the way of his business as an attorney did not breach the first proviso of s 17 (a). Section 17 (a) should not be interpreted in a technical or pedantic manner such that the extradited person could only be prosecuted for a narrowly specific offence with the precise legal ingredients stated in the requisition. The amended s 409 charges would, in any event, fall under the second proviso of s 17 (a): at [73] to [76].

(9) The amendment of the original Fourth Charge from a charge under s 409 to a charge under s 420 was not a breach of the speciality rule. There was no additional requirement under the second proviso of s 17 (a)that the offence based on the same factual circumstances set out in the requisition must also be a ‘reduced’ offence: at [77] to [78].

(10) The Statement of Facts relating to the original Fourth Charge under s 409 also disclosed the amended Fourth Charge under s 420 and therefore satisfied the second proviso of s 17 (a). While the Statement of Facts alleged entrustment, and while it was...