Public Prosecutor v Chan Yoke Ling Catherine
| Jurisdiction | Singapore |
| Judge | Kow Keng Siong |
| Judgment Date | 03 May 2004 |
| Neutral Citation | [2004] SGDC 108 |
| Published date | 14 May 2004 |
| Court | District Court (Singapore) |
| Plaintiff Counsel | Mr Mohamed Nasser bin Ismail (Deputy Public Prosecutor) |
| Defendant Counsel | Mr Joseph Liow Wang Wu (Straits Law Practice) |
| 3 May 2004 |
Judgement reserved. |
District Judge Kow Keng Siong:
The charges & the appeal
1. This Judgement arises from an appeal against sentence.
2. The Accused – Ms Catherine Chan Yoke Ling – pleaded guilty to three charges under section 409 of the Penal Code for having committed criminal breach of trust as an agent by dishonestly misappropriating a total of $84,018 (in cash and 23 cheques) entrusted to her as a director of Igxist Design Pte Ltd (Igxist) on various occasions between 1998 to 2000: DAC 38810–11/2003 & DAC 38817/2003.
3. The Accused also admitted to three other similar section 409 charges involving monies in 19 cheques (totaling $32,180) and consented to them being taken into consideration for the purpose of sentencing: DAC 38825/2003, DAC 38836/2003 & DAC 38847/2003.
4. After considering the circumstances of the offences, I sentenced the Accused to a total of 20 months’ imprisonment.
Statement of Facts
5. After entering her plea of guilt, the Accused admitted to the following facts without qualification.
6. Accused & Igxist – The Accused was a director of Igxist – a graphic design company – between 1 July 1992 to 15 November 2002. At all material times, her co-directors and shareholders were Leong Min Choo (Leong) and Ong Beng Koon (Ong). All three of them were employed as full-time employees in the company.
7. Accused’s role in Igxist – The three Igxist directors had clearly defined work scope:– Leong and Ong attended to design work and print production, whilst the Accused was in-charge of sales and financial matters of the company. As part of her responsibilities, the Accused would (i) prepare payment vouchers and cheques for payment; (ii) file the statement of accounts from the company’s bank; and (iii) file the accounts prepared by the company’s auditors.
8. The scam – Between end-June 2002 and early July 2002, Leong and Ong discovered that the Accused had signed a number of payment vouchers without supporting documents.
9. It was later established that a total of $116,198 was withdrawn by the Accused from Igxist’s account between 5 December 1997 and 28 June 2002. These amounts were made up of 42 cheques (amounting to $111,798) and $4,400 cash (from the ‘cash-in-hand’ account).
10. Igxist’s cheques required two signatures from any of the company’s directors for issuance. To support the issuing of the cheques in question, the Accused had raised fictitious payment vouchers purportedly for payment to Igxist’s clients for services rendered to the company.
11. DAC 38811/2003 – Between 3 June 1998 and 31 December 1998, the Accused dishonestly misappropriated $18,600 of Igxist’s funds by taking $4,400 cash and encashing four of the company’s cash cheques amounting to $14,200.
12. DAC 38817/2003 – Between 4 January 1999 and 18 September 1999, the Accused dishonestly misappropriated $36,610 of Igxist’s funds by encashing eight of the company’s cash cheques.
13. DAC 38825/2003 – Between 5 January 2000 and 24 November 2000, the Accused dishonestly misappropriated $28,808 of Igxist’s funds by encashing eleven of the company’s cash cheques.
Mitigation
Circumstances of the offences
14. During mitigation, Mr Liow (counsel for the Defence) submitted that the Accused did not embezzle all the money for herself. It was submitted that the raising of fictitious payment vouchers (by ‘double booking’ certain company expenses) was in fact part of a scheme amongst the three directors to reduce their very high personal income taxes.[1]
15. This scheme involved the Accused –
a. Preparing payment vouchers which would be supported with duplicated copies of invoices from the company’s suppliers;
b. Issuing cash cheques in payment of these ‘dummy’ payment vouchers by signing as one of the cheques’ signatories first (the other signatory frequently being Ong);
c. Encashing the cheques; and
d. Distributing the monies ‘more or less equally’ among the three directors.[2]
16. The effect of this scheme was that (a) the company would not need to pay any corporate tax (since the company’s accounts would show little or no earnings), and (b) the directors would pay less personal taxes on their official income from the company.[3]
17. According to Mr Liow, this scam came to light when the Accused decided to leave the company in June 2002. The Accused had by then realised that she was sole person bringing in all the business to the company and that the other two directors were merely performing the ‘backroom’ work.[4] It was submitted that Ong and Leong were angry and upset with the Accused for wishing to leave Igxist, and they had maliciously and falsely alleged that she had embezzled company’s monies.[5]
Mitigating factors cited
18. Based on the above factual matrix, the Defence submitted that the Accused had dishonestly converted only one-third of the amount specified in the six proceeded charges, ie about $38,000.[6]
19. According to Mr Liow, Igxist did not suffer any loss as a result of the Accused’s ‘wrongful conduct’. It was contended that the Accused and her fellow directors would have in any event resolved to distribute the monies as director fees or bonuses.[7]
20. During mitigation, Mr Liow drew my attention to the fact that the Accused had a strong family background. Under the circumstances, it was submitted that personal deterrence should not feature in the Accused’s sentencing consideration.[8]
21. Finally, Mr Liow also highlighted to me the fact that the Accused was a first offender. According to Counsel, the ‘clang of prison gates’ principle applied in the Accused’s case.[9]
Prosecution’s challenge
22. The essence of Mr Liow mitigation was that –
a. The Accused committed the offences with the consent and connivance of the other two directors, and
b. The Accused only profited about one-third of all the embezzled monies.
23. Both these contentions were disputed by the Prosecution.[10] According to Mr Mohamed Nasser for the Prosecution, the Accused had embezzled all the money for herself, and that her co-directors were not privy or parties to her scam.
No qualification of plea
24. In this case, there was no question as to whether the offences were committed. Throughout the proceedings, the Accused had consistently acknowledged that by dishonestly misappropriating Igxist’s funds entrusted to her by the company (a distinct legal entity) as a director, she had committed offences under section 409 of the Penal Code.
25. However, the Accused had raised certain claims regarding the circumstances in which the offences were committed. As these claims were disputed by the Prosecution, the parties agreed that a post-conviction hearing should be conducted to ascertain the circumstances in which – as opposed to whether – the Accused had committed the offences.[11]
Post-Conviction hearings
Power to conduct post-conviction hearings in plead guilty cases
26. In Singapore, there does not appear to be any law expressly empowering Judges to conduct post-conviction hearings in plead guilty cases for the purpose of determining the factual basis for sentencing. In my view, the power and principles governing the conduct of such hearings (if any) are clearly matters of criminal procedure. In the circumstances, section 5 of the Criminal Procedure Code directs that –
As regards matters of criminal procedure for which no special provision has been made by this Code or by any other law for the time being in force in Singapore, the law relating to criminal procedure for the time being in force in England shall be applied so far as the same does not conflict or is not inconsistent with this Code and can be made auxiliary thereto (emphasis added).
27. Pursuant to section 5, recourse must therefore be had to the law in force in England, the application of which is mandatory: Charlie Tay v PP; Tong Hoe & Anor v PP
Survey of the relevant English law
28. The decision in Newton - In this regard, I noted that English Courts have in fact developed considerable jurisprudence on post-conviction hearing in plead guilty cases. Such hearings, commonly referred to as “Newton hearings”, owe their origins to the case of Newton 77 Cr App R 13. In that case, the English Court of Appeal held that there are two alternative ways of resolving a factual dispute during sentencing. One is for the Judge to hear no evidence but to consider submissions from parties and then form a conclusion. If this approach is taken and the submissions are substantially in conflict, the Judge would have to accept the Defence version ‘so far as possible.’ The second method is to conduct a hearing to resolve the factual dispute.
29. Circumstances in which post-conviction hearings must be conducted – Subsequent English cases have since clarified that where there is a substantial conflict as to the facts of the offence, and the Court is unwilling to sentence on the basis of the accused’s version, it must hear evidence on the question, whether or not the Defence wishes such a hearing to take place: Smith (1986) 8 Cr App R (S) 169; William v Another (1983) 5 Cr App R (S) 134; Myers [1996] 1 Cr App R (S) 187; Beswick [1996] 1 Cr App R (S) 343; unless –
a. The difference in the two versions of the facts is immaterial to sentencing, and the same sentence would be passed however the question is determined: Hall [1984] 6 Cr App R 321, Sweeting [1987] 9 Cr App R 372, Broderick (1993) 15 Cr App R (S) 476;
b. The version put forward by the Defence is ‘manifestly false’ or ‘wholly implausible’: Costley [1989] Crim LR 913, Hawkins [1985] 7 Cr App R 351, Bilinski [1987] 9 Cr App R 360; or
c. The Defence version does not amount to a contradiction of the Prosecution’s case but rather relates to extraneous matters explaining the background of the offence or other circumstances which may lessen the sentence. Such matters are likely to be outside the Prosecution’s knowledge and the Prosecution is not bound to challenge them, by...
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