Public Prosecutor v Asok Kumar and Another

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 13 August 1999
• Neutral Citation: [1999] SGHC 211
• Docket Number: Magistrate's Appeal No 159 of 1998
• Date: 13 August 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Ong Hian Sun, David Lim Jit Hee and Wendell Wong (Deputy Public Prosecutor)
• Citation: [1999] SGHC 211
• Defendant Counsel: Harry Elias SC, KS Rajah SC and Christopher Goh (Harry Elias Patrnership)
• Court: High Court (Singapore)
• Subject Matter: Criminal Law,Whether offence made out on the facts,Property,Corruption,s 6(a) Prevention of Corruption Act (Cap 241),Charge,Appeals against findings of fact,Whether offence made out on the facts -s 420 Penal Code (Cap 224),Charges containing contradicting allegations,Cheating,Burden on appellant,Offences,Appeal,Criminal Procedure and Sentencing

: The charges

This is an appeal against the decision of the district judge acquitting the respondents of corruption, cheating and criminal breach of trust in the court below.

The facts, in brief, are these. At the material time, the respondents were, with four others, the directors of a company known as Promenade Properties Pte Ltd (`Promenade Properties`). In 1993, the board of directors of Promenade Properties agreed to refurbish and renovate the building known as `The Promenade` at 300, Orchard Road, Singapore, which was owned by the company. Amongst the renovations agreed to by the Board was the conversion of the second basement car park (`B2`) of the building to accommodate an air-conditioned food court. Multiplex Holdings (S) Pte Ltd (`Multiplex`) was appointed to commence design and construction in 1994.

The conversion was supervised by the respondents, acting as liaison between Promenade Properties and Multiplex. They also arranged, in the course of the renovation works, for the lease of the food court to Richmall Holdings Pte Ltd (`Richmall`). It was a term of the lease that Richmall was to operate the food court as `a first class food court equivalent in all respects to "Food Junction at Tanglin Mall"`. This prosecution arose as a result of certain payments made by the directors of Richmall to the respondents in connection with these arrangements.

It was alleged by the prosecution, and conceded by the respondents, that jointly, they had received the sum of $2m from Richmall. The trial judge found that the sum was paid in three instalments or `tranches`: $500,000 on 1 March 1995, $500,000 on 31 July or 1 August 1995 and $1,000,000 on 3 October 1995.

The issue at trial was for what purpose the payments had been made, and whether the payments constituted a criminal offence. The respondents were originally charged with receiving the sum of $2m corruptly, and having thus committed offences under s 6(a) of the Prevention of Corruption Act (Cap 241) in furtherance of the common intention of them both under s 34 of the Penal Code (Cap 224). The prosecution took the view that each occasion on which the respondents had received a sum of money constituted an offence, and preferred three charges against each respondent. Trial was fixed to commence on 2 February 1998 on the following charge:

You,

(B1) Asok Kumar s/o Naraindas, M/42 yrs NRIC No S0188605/C

(B2) Raj Kumar s/o Naraindas, M/44 yrs NRIC No 0207646/B

are charged that you, on or about 1 March 1995, at 300 Orchard Road [num ]04-05/06, Singapore, being agents, to wit, directors of Promenade Properties Pte Ltd, and in furtherance of the common intention of you both, did corruptly obtain from Lim Thiam Boon, Toh Lian Tai and Oh Beng Soon, directors of Richmall Holdings Pte Ltd, for yourselves as a gratification of a sum of $500,000 (five hundred thousand dollars) being part payment of a sum of $2,000,000 (two million dollars) as a reward for doing an act in relation to your principal`s affairs, to wit, the granting of the lease of the food court at the Promenade to Richmall Holdings Pte Ltd, and you have thereby committed an offence punishable under s 6(a) of the Prevention of Corruption Act (Cap 241) read with s 34 of the Penal Code (Cap 224).

Two further charges relating to the $500,000 received on 31 July or 1 August 1995 and the $1,000,000 received on 3 October 1995 were preferred at the same time.

Just before the start of trial, on 26 January 1998, the prosecution preferred additional charges against each respondent, alleging that the respondents had (in the alternative or conjunctive) committed the offence of cheating under s 420 of the Penal Code in furtherance of the common intention of them both. Again, three charges were preferred against each respondent - one for each occasion of receipt. The thrust of these charges were that the respondents did

... cheat [the directors of Richmall Holdings Pte Ltd] by deceiving them into believing that Richmall Holdings Pte Ltd had to pay renovation costs of $2,000,000 (two million dollars) for the renovation of the food court at the Promenade, when both of you knew for a fact that Richmall Holdings Pte Ltd was not required to pay such renovation costs as the renovation costs for the food court would be borne by Promenade Properties Pte Ltd, and by such deception, both of you dishonestly induced [the directors of Richmall Holdings Pte Ltd] to deliver [the sums of $500,000, $500,000 and $1,000,000 on 1 March 1995, 31 July or 1 August 1995 and 3 October 1995 respectively] ...

The trial commenced, on schedule, for all 12 charges (six against each respondent) on 2 February 1998. On the second day of trial, the prosecution tendered a further three charges against each respondent, this time in respect of the offence of criminal breach of trust under s 409 of the Penal Code, read with s 34. It was by these charges alleged that the respondents

... being agents, to wit, of Promenade Properties Pte Ltd, and in such capacity being entrusted with dominion over property, to wit, [the sums of $500,000, $500,000 and $1,000,000 on 1 March 1995, 31 July or 1 August 1995 and 3 October 1995 respectively] paid by [the directors of Richmall Holdings Pte Ltd] as payment to Promenade Properties Pte Ltd as renovation costs of the food court at the Promenade, in furtherance of the common intention of [them] both did commit criminal breach of trust of the said [sums] by dishonestly misappropriating to [their] own use that property ...

Joint or separate trials

The trial judge heard arguments whether separate trials ought to be ordered for each set of offences and, applying s 172 of the Criminal Procedure Code (Cap 68), concluded that it would not be necessary to do so for a fair trial, since the offences arose out of a `single act or series of acts` and it was doubtful what offence or offences the facts proved would constitute, and there was no prejudice to the respondents otherwise. I see no reason to disturb this finding.

The prosecution pressed not only for a trial of all three offences together, but for a conviction on all three offences. In other words, it was argued below that the charges were not `alternative` in the strict sense that only one of the three offences had been committed. It was apparent to the trial judge from the outset that this was patently not the case. As he recognised, some of the charges were, on their face, mutually exclusive, and, as he concluded, `it appeared that the accused would have to be acquitted of one charge if they were convicted of the other charge (although the prosecution took a different view)`.

This much was clear because the facts that the prosecution sought to prove for each offence were inconsistent with each other. For example, to establish the corruption charge, the prosecution had to prove that the sum was a gratification, paid as a reward to the respondents for doing an act in relation to their principal`s (ie Promenade Properties`) affairs. In contrast, the cheating charge turned on the allegation that the sum was paid by Richmall not intending it as a bribe, but under the genuine (though erroneous) belief that it was for renovation costs. The contradiction was as follows: how could Richmall intend the payment to be a bribe and at the same time genuinely believe it to be a bona fide payment for services? Logic dictates that it must either be the one case or the other.

The cheating charge was also inconsistent with the charge of criminal breach of trust. Whereas the crux of the cheating charge was that the sum was paid when in fact no renovation costs were payable, the heart of the criminal breach of trust charge was that renovation costs were in fact payable, but unlawfully pocketed by the respondents, constituting a wrongful gain to themselves, or a wrongful loss to Promenade Properties.

In seeking a conviction on all three charges in this appeal, the prosecution exposed themselves to the same difficulties they faced below, namely, that evidence raised in support of one offence invariably dampened the probative force of evidence raised in support of either or both of the other offences. This was unavoidable since the charges contained contradicting allegations.

The trial

In all, the respondents were tried on nine charges each. The district judge, over five months of trial, heard evidence from 30 prosecution witnesses. Defence counsel below elected to conduct the defence through the cross-examination of the prosecution`s witnesses, and so the respondents elected not to give evidence in the court below. The strategy was to demonstrate through cross-examination that in fact none of the allegations raised in the charges was true, but that the respondents had been paid the $2m in exchange for services they had, in their personal capacity, provided Richmall, namely, in assisting them to establish a food court meeting the standard required by the lease agreement with Promenade Properties. By doing so, defence counsel hoped to counter the accusations that the money had been elicited as a bribe (as in the corruption charge) or paid as a result of the representation that Richmall was to pay for the cost of renovation, whether true (for criminal breach of trust) or untrue (in the case of cheating). At the very least, it was hoped the cross-examination would raise a reasonable doubt as to the truth of those allegations.

On 22 June 1998, the trial judge after deliberation acquitted the respondents of all charges. The Public Prosecutor now appeals against the order of acquittal.

The petition of appeal

In the petition of appeal filed on 21 November 1998, the Public Prosecutor identified numerous objections to the decision below. These objections, however, were riddled with inconsistencies, and did not establish a theory which I could accept as a viable alternative to the trial judge`s decision.

On the one hand, it is...