Public Prosecutor v Chua Boon Chye

• Jurisdiction: Singapore
• Judge: Liew Thiam Leng
• Judgment Date: 22 November 2013
• Neutral Citation: [2013] SGDC 441
• Court: District Court (Singapore)
• Hearing Date: 19 March 2013,20 March 2013,25 March 2013,27 March 2013,21 March 2013,26 March 2013,09 July 2013,08 October 2013,28 March 2013,10 July 2013,13 May 2013,11 July 2013,08 July 2013,22 March 2013
• Docket Number: DAC 50327/11
• Plaintiff Counsel: DPP Mr Andre Jumabhoy & Ms Illona Tan
• Defendant Counsel: S/C Mr Sant Singh, Mr Shyam Kumar (M/S Tan Rajah & Cheah & M/S Shyam Chew & Co)
• Published date: 06 January 2014

District Judge Liew Thiam Leng:

The accused is facing a charge under section 411 of the Penal Code (Cap.224) for dishonestly receiving stolen property of 105 metric tonnes (“MT”) of Marine Fuel Oil (“MFO”) belonging to Chevron Singapore Pte Ltd (“Chevron”) valued at approximately S$69,106.70 and having reason to believe the property to be stolen property. The accused claimed trial to the charge and at the end of the trial, the Accused was found guilty and convicted accordingly. He was sentenced to 8 months imprisonment. The defence is appealing against the conviction and sentence.

Prosecution’s case

A summary of the prosecution’s case is provided by the prosecution. On the morning of 29 October, 2007, the vessel MT Milos (“Milos’) was scheduled to receive 2,500 MT of MFO 380 CST on behalf of Aegean Bunkering which had been purchased from Marubeni. The MFO was stored at Chevron’s Tanjong Penjuru Terminal (“the Terminal”). The contracted price for the MFO, which was in US dollars, was the average price of MFO 380 CST for the months of October to December, 2007 of the Mean of Average Platts (“MOP”) for Singapore plus a premium of USD4.50 per metric ton, per P14, which worked out to USD 439.40 per metric ton and a total price of USD $1,100,827.00

Prior to Milos’ arrival at the Terminal, Hussein Ahmad Bin Abdul Satar (PW5) contacted the Accused and offered to sell 105 MT of MFO to the Accused. The Accused agreed to purchase an additional 105 MT of MFO, on top of the contacted 2,500 MT of MFO, at S$180 per MT, for a total price of S$18,900. The prosecution’s case was that the manner of the transaction coupled with the price at which the excess 105 MT was sold would have put the Accused on notice that the property in question was stolen property.

Defence Case

A summary of the Defence’s case is provided by the defence. The Accused was the director and General Manager of Aegean Bunkering and he sourced out fuel for and on behalf of the parent company (Aegean Marine Petroleum SA). The parent company decided on the quality, quantity and price of the fuel and also made the payment. Once the purchase was made, Aegean Bunkering referred the operational aspects of the delivery to Aegean Breeze Shipping and in particular, to Captain Ioannis. Aegean Bunkering did not own the barge MV Milos, which was owned by Milos Shipping (D16). The said vessel was operated by Aegean Breeze Shipping. The Accused did not know what the schedule of MV Milos was, that it was berthed at the Terminal on 29 October, 2007 and who the bunker clerk on duty was. On the evening of 28 October, 2007, he received a call from Hussein on his mobile, informing him that MV Milos was going to be berthed at the Terminal and asking whether his company was interested in purchasing the 105 metric tonnes of off-spec fuel.

The Accused called Captain Ioannis to inform him that there was a Malay broker who knew that MV Milos was going to the Terminal to take delivery of fuel and wanted to sell 105 metric tonnes of off-spec fuel. The Accused then asked if Captain Ioannis was interested in buying the said quantity of fuel. Thereafter, Captain Ioannis consulted with his Operations Executi ve (U Soe Paing) to confirm that MV Milos was indeed going for loading at the Terminal and called the bunker clerk (Thet Lwin) on duty to check if there was capacity to load the extra fuel. In addition, Captain Ioannis also cleared the purchase with his coordinator in Greece before informing the Accused that Aegean Breeze Shipping would purchase the excess fuel. Captain Ioannis of Aegean Breeze Shipping paid a sum of US$18,900 from Aegean Breeze Shipping’s USD account for the excess fuel. This fact was confirmed by Low Li Nah that Aegean Breeze Shipping had withdrawn cash of US$10,000 and US$15,000 (D33) and had sufficient funds to pay for the 105 metric tonnes of fuel.

The Accused testified that he did not purchase the aforesaid fuel. On the material date and time, he did not have anything to do with the aforesaid operational staff of Aegean Breeze Shipping, namely U Soe Paing and Thet Lwin. His contention was that he was a conduit pipe and that the contents of his statement (P13) were inaccurate in respect of several areas. This contention was supported by independent oral/documentary evidence.

Issues of the case

Under section 411 of the Penal Code, to satisfy the ingredients of the charge, there must be a stolen property; the stolen property was in the possession of the accused and the Accused had knowledge or reason to believe that the property was stolen (Ratantal & Dhirajlal’s Law of Crimes 24th Edition, 2009).

In the context of the present case, it is incumbent on the prosecution to show the following:- that the 105 MT of MFO was stolen property; whether it was the Accused who was purchasing the 105 MT of MFO and the purchase price was S$180 per metric tonne. Finally, it must be shown that the Accused had reason to believe that the 105 MT of MFO was stolen property.

Whether the 105 MT of MFO was stolen property

Under section 410(1) of the Penal Code, stolen property is defined as “property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated, or in respect of which criminal breach of trust or cheating has been committed.”

Prosecution’s submission

The prosecution submitted that what is crucial is possession and not the ownership of property. The prosecution stated that the property in question was in the possession of Chevron and that PW8 Tan Poo Lee had testified that the MFO could only be moved by Chevron. Moreover, PW1 Shankar s/o Balasubramanam had given evidence that he was convicted for an offence of Criminal Breach of Trust under section 408 of the Penal Code (Cap 224) as he had dominion over the MFO in question. PW1 had stated that the MFO was in the possession of Chevron at all times.

The facts of the case showed that PW1 was the Operations Executive of Chevron at the Terminal. He was the acting Shift Superintendent on the day in question and he was in the control room in charge of operations for the loading of MFO from and discharging to the shore tanks located at the Terminal’s premises. PW1 would also ensure that all the pipes leading to the respective tanks are connected to the pumps and the jetties where the vessels are berthed and he would control the valves which open and close to the said pipeline system as and when required. PW1 would keep an update of the records pertaining to the movement of the MFO at the Terminal and produce the relevant documentation which include the Certificate of Quantity (“COQ”).

In the course of the operations at the Terminal, there would be gains and losses in regard to the MFO movements and at the end of the day, PW1 would have to record these variances in a log book and report to his superior, who would be the Operations Engineer PW8, Tan Poo Lee in this case. The gains and losses are observed as differences between the inventory under the SAP system based on paper documents issued by Chevron and the ENRAF gauging system which measures the actual amount of MFO in the tanks, when reconciliation of the quantitites of MFO is performed at the end of the day. If PW1 does not report on such gains and losses, no one would know about it and this position was confirmed by PW8.

PW1 had conspired with PW2 and PW3 to siphon these gains of MFO in the possession of Chevron at the Terminal and sell it to vessels which came to the Terminal for loading. PW1 would identify the gains of MFO which have not been reported to Chevron and he would siphon off these MFO without being detected by Chevron. PW1 would then inform PW2 of the quantity of MFO available for sale. PW1 would also inform PW2 on the vessel which was arriving at the Terminal for loading. PW2 would then contact the vessels’s owners or representatives and negotiate on the sale and price of this excess MFO which would be on top of the vessel’s nominated order. In the present case, PW2 had informed PW5 to do so and he had contacted the Accused for the sale of this excess MFO. PW1, PW2 and PW3 had confirmed that no permission was obtained from Chevron for this scheme and that it was illegal to do so as Chevron was unaware of this scheme.

In order to cover their tracks, when the vessels berth at the Terminal, arrangements would be made for PW2 or PW3 to go on board the barge and take a pre and post loading survey. The figures for the quantity on board (“QOB”) would be documented on the pre-loading survey and this would be adjusted to include the excess MFO so that the loading of the additional MFO would not be detected. Once the loading is completed, the Certificate of Quantity (“COQ”) based on the adjusted pre-loading survey records, excluding the quantity of the additional MFO would be prepared by PW1 as the official Chevron documentation for the said transaction. The payments for the excess MFO would be made in Singapore dollars in cash without any receipts and the transaction would not be reflected in the COQ and no records would be kept at all.

On the morning of 29th October, 2007, the excess 1O5 MT of MFO was loaded onto the MV Milos. PW1 provided PW2 with the information that he had approximately 1O5 MT of MFO for sale. PW2 then contacted PW5 who called Aegean Bunkering directly as he was given the accused’s mobile number by the latter’s office. PW5 managed to reach the accused and he spoke to the Accused for the first time, introducing himself as a broker. PW1 then asked the Accused if he would like to purchase 105 MT of MFO. The accused reverted back to PW5 eventually and confirmed his agreement to purchase the 1O5 MT of MFO at S$18O per MT.

Upon receiving confirmation from PW5 of the purchase from the Accused, PW2 made arrangements for PW3 to go onboard the Milos to take the pre-loading survey. The SGS Testing & Control...