Prime Shipping Corporation v PP

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 29 March 2021
• Docket Number: Criminal Revision No 9 of 2020
• Court: High Court (Singapore)

Prime Shipping Corp

and

Public Prosecutor

[2021] SGHC 71

See Kee Oon J

Criminal Revision No 9 of 2020

General Division of the High Court

Criminal Procedure and Sentencing — Confiscation and forfeiture — Whether forfeiture should be ordered against innocent party — Policy and purpose of offence-creating legislation

Criminal Procedure and Sentencing — Disposal of property — Forfeiture — Forfeiture of vessel used to misappropriate gasoil — Owner of vessel not being charged — Applicable principles of forfeiture — Whether owner of vessel was complicit — Applicable rules of attribution — Whether forfeiture was proportionate

Held, dismissing the application:

(1) Disposal inquiry proceedings were not criminal in nature, and accordingly the applicable standard of proof was the civil standard of proof, which was on a balance of probabilities: at [7].

(2) In considering the exercise of the court's discretion in ordering forfeiture, the court would have to consider both the policy and purpose of the offence-creating legislation. Whether forfeiture could be ordered against an innocent party would depend on the case-specific facts and the applicable statutory context of the offence-creating legislation: at [14] and [15].

(3) The evidence showed that the Applicant's Chairman had given instructions to Prime South's captain and chief officer in relation to the misappropriation of the gasoil, and had played a part coordinating the illegal operations. The Applicant's Chairman was the directing mind behind the Applicant and was in a position of authority, and could be characterised as the “living embodiment” of the Applicant: at [20] to [23].

(4) The evidence also showed that the Applicant had made minimal efforts to conduct internal investigations or implement measures to prevent a recurrence of illegal activities using its ships. The Applicant had also chosen to ignore the involvement of the Applicant's Chairman, as well as the illegal operations concerning Prime South. Accordingly, it was clear that the Applicant was complicit in the commission of the offences: at [26] to [29].

(5) Forfeiture under s 364 of the CPC was discretionary, and in ordering forfeiture the court should consider the degree of complicity of the claimant, the claimant's ability to take any preventive measures, the value of the property sought to be forfeited, the proportionality of forfeiture with respect to the gravity of the offence and harm caused, and the extent of use of the property: at [34] and [35].

(6) Forfeiture could serve several distinct though interrelated purposes. First, it could serve as a form of punishment. Second, it could serve to deter both potential offenders and offenders. Third, it could serve to remove from circulation, the property which was used to commit the crime. Fourth, it could serve to prevent a complicit claimant from being unjustly enriched: at [37].

(7) It was clear that the Applicant was not a wholly innocent party. The Applicant had also chosen not to implement any preventive measures. Furthermore, when viewed in light of the scale of criminal activities involved, it could not be said that the forfeiture of Prime South would be disproportionate: at [38] and [40].

Case(s) referred to

Chandra Kumar v PP [1995] 2 SLR(R) 703; [1995] 3 SLR 123 (refd)

Ho Kang Peng v Scintronix Corp Ltd [2014] 3 SLR 329 (refd)

Hong Leong Finance Ltd v PP [2004] 4 SLR(R) 475; [2004] 4 SLR 475 (refd)

Macri v The State of Western Australia [2006] WASCA 63 (refd)

Magnum Finance Bhd v PP [1996] 2 SLR(R) 159; [1996] 2 SLR 523 (folld)

Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 (refd)

Oon Heng Lye v PP [2017] 5 SLR 1064 (refd)

Sofjan v PP [1968–1970] SLR(R) 782; [1969–1971] SLR 123 (folld)

Tom-Reck Security Services Pte Ltd v PP [2001] 1 SLR(R) 327; [2001] 2 SLR 70 (folld)

United States v Bajakajian 524 US 321 (1998) (refd)

Facts

The applicant (“Applicant”) was the owner of a chemical oil vessel tanker (“Prime South”) which was used to illegally misappropriate gasoil from an oil refinery located on Pulau Bukom. Prime South's captain was charged under s 411 read with ss 108B and 109 of the Penal Code (Cap 224, 2008 Rev Ed). He pleaded guilty to five proceeded charges and was sentenced to an aggregate term of 70 months' imprisonment. Prime South's chief officer pleaded guilty to related charges and was sentenced to 30 months' imprisonment. Charges were filed against the chairman of the Applicant's board of directors (“Applicant's Chairman”) as well, but he had remained out of jurisdiction.

The Prosecution applied to forfeit Prime South under s 364(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). At the disposal inquiry, the senior district judge ordered the forfeiture of Prime South. The senior district judge held that the actions of the Applicant's Chairman, who was involved and had given instructions to Prime South's captain and chief officer in relation to the offences, were attributable to the Applicant. The Applicant was also found to have been complicit in the offences.

The Applicant then filed an application for criminal revision of the forfeiture order, contending that it was an innocent party, and that the forfeiture order was disproportionate.

Legislation referred to

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 386

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 364, 364(2), 400, 401

Penal Code (Cap 224, 2008 Rev Ed) ss 108B, 109, 411

Wholesome Meat and Fish Act (Cap 349A, 2000 Rev Ed)

Selvarajan Balamurugan and Partheban Pandiayan (K&L Gates Straits Law LLC) for the applicant;

Christopher Ong, Stephanie Chew, Ben TanandRyan Lim(Attorney-General's Chambers) for the respondent.

29 March 2021

See Kee Oon J:

Introduction

1 Prime Shipping Corporation (“the Applicant”) filed this application for criminal revision of the order made by a senior district judge (“SDJ”) on 9 October 2020 for forfeiture of a ship under s 364(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). I dismissed the application and now set out the full reasons for my decision.

Background facts

2 The Applicant, a Vietnamese company, is the owner of the chemical oil vessel tanker M/T Prime South (“Prime South”). Prime South was seized by the authorities on 8 January 2018 in the course of criminal investigations. Prior to that date, Prime South was captained by Nguyen Duc Quang (“Quang”). The investigations revealed that Quang had acted in conspiracy with Tran Quang Tuan (“Tran”), Nguyen Manh Cuong (“Cuong”), and Nguyen Quoc Tuan (“Tuan”) to illegally misappropriate 14,380.52mt of gasoil (valued in excess of US$7m) from Shell Eastern Petroleum Pte Ltd's (“Shell”) refinery at Pulau Bukom over 11 occasions between 1 February 2017 and 7 January 2018. At all material times, Tran was the chairman of the Applicant's board of directors until his resignation on 31 October 2018.

3 A total of 12 charges under s 411 read with ss 108B and 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) were brought against Quang, with 11 relating to Prime South. Quang pleaded guilty to five proceeded charges and was sentenced to an aggregate sentence of 70 months' imprisonment. Notably, other vessels belonging to the Applicant were also involved, with another ship's captain receiving an aggregate sentence of 66 months' imprisonment after pleading guilty to various similar charges. Dang Van Hanh (“Hanh”) a chief officer of Prime South, pleaded guilty to related charges and was sentenced to 30 months' imprisonment. In total, nine individuals were charged in connection with the misappropriation and receipt of stolen gasoil involving Prime South, including seven employees of Shell. Charges against Tran were filed as well, but Tran has thus far remained out of jurisdiction.

4 Following the conviction of Quang and Hanh, an order to forfeit Prime South was sought and a disposal inquiry was held in due course. It was not disputed by the parties that Prime South had been used in the commission of the offences involving the stolen gasoil. At the disposal inquiry, the SDJ found that there was uncontroverted evidence that Tran was involved in the offences and had given Quang instructions to go to Pulau Bukom to collect the misappropriated gasoil alongside legitimately purchased gasoil. The SDJ went on to order the forfeiture of Prime South under s 364(2) of the CPC on the following grounds:

(a) Tran was the “living embodiment” of the Applicant using the applicable test in Tom-Reck Security Services Pte Ltd v Public Prosecutor[2001] 1 SLR(R) 327 (“Tom-Reck”). Accordingly, Tran's “transgressions were therefore the [Applicant's] transgressions”.

(b) The Applicant was complicit in the offences as evidenced...