Public Prosecutor v Ewe Pang Kooi

JurisdictionSingapore
JudgeChan Seng Onn J
Judgment Date16 July 2019
Neutral Citation[2019] SGHC 166
CourtHigh Court (Singapore)
Docket NumberCriminal Case No 53 of 2018
Year2019
Published date28 March 2020
Hearing Date28 May 2019
Plaintiff CounselHon Yi and Nicholas Khoo (Attorney-General's Chambers)
Defendant CounselMichael Khoo SC and Low Miew Yin Josephine (Michael Khoo & Partners)
Subject MatterCriminal Law,Offences,Criminal breach of trust by agent,Sentencing
Citation[2019] SGHC 166
Chan Seng Onn J: Introduction

Driven by an insatiable appetite for gambling, Ewe Pang Kooi (“the accused”) pilfered about $41 million from his unwitting victims who had entrusted him to manage their affairs and finances over the course of about ten years.1 Till date, after accounting for sums which the accused had deposited back into the victim companies, about $24 million remain unrecovered.2 It is fair to say that one man’s gambling habit came at a great price for many.

In Public Prosecutor v Ewe Pang Kooi [2019] SGHC 72 (“Ewe conviction judgment”), I convicted the accused on all 50 charges under s 409 of the Penal Code (Cap 224, 22 charges under the 1985 Rev Ed; 28 charges under the 2008 Rev Ed) (collectively, “PC”). Collectively, the 50 charges relate to the $41 million which the accused had misappropriated from his victims.

The prescribed sentence under s 409 PC is life imprisonment or an imprisonment term of up to 20 years. The imprisonment term was raised from ten years to 20 years in the 2008 Penal Code amendments (see Penal Code (Amendment) Act 2007 (No. 51 of 2007), First Schedule at (34)). Such grave penalties reflect the severity of the offences which the accused has been charged with and convicted of.

Methodology in sentencing

In determining the appropriate sentence for the accused, I note that the court in Public Prosecutor v Teo Cheng Kiat [2000] SGHC 129 (“Teo Cheng Kiat”) stated at [26] that in cases “where there are multiple charges, it is of no real practical significance what the individual sentences ought to be” (“the global approach”).

While the end result may not differ significantly, as Chao Hick Tin JA (as he then was) observed in Public Prosecutor v Syamsul Hilal bin Ismail [2012] 1 SLR 973 at [27], determining the appropriate sentence for each charge is necessary for the court to properly comprehend the overall criminality of the offender. Only thereafter can the court determine the appropriate global sentence. Doing otherwise would be like putting the cart before the horse.

I therefore adopt the approach in Mohammed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998, whereby it was noted that sentencing takes place in two steps: first, I will consider the appropriate individual sentence for each charge. In arriving at each sentence, I shall generally have regard to the aggravating and mitigating factors, as well as the relevant sentencing precedents. Second, in determining which of the sentences ought to run consecutively and whether the individual sentences for those charges ordered to run consecutively (which directly impact the total sentence) ought to be adjusted, I shall have regard to, inter alia, the one-transaction rule and the totality principle.

Sentences for individual offences

To arrive at the sentence for each of the accused’s 50 offences, I have considered the relevant sentencing precedents for criminal breach of trust (“CBT”), as well as the aggravating and mitigating factors in this case.

The preliminary sentence

In Wong Kai Chuen Philip v PP [1990] 2 SLR(R) 361 (“Philip Wong”), Chan Sek Keong J (as he then was) observed at [18]:

In an offence like criminal breach of trust, it is a matter of common sense that, all other things being equal, the larger the amount dishonestly misappropriated the greater the culpability of the offender and the more severe the sentence of the court.

Hence, in CBT offences, the key indicator of the harm perpetrated as well as the culpability of the offender is the amount misappropriated. After this is determined, a preliminary sentence may be derived. Following which, discounts or uplifts to the preliminary sentence may be allowed in the particular case depending on the aggravating and mitigating factors of each case.

Dataset of s 409 PC cases

With the above in mind, I proceed to review the following s 409 PC cases (outliers highlighted in yellow; see [11] to [13] below):

Case Amount misappropriated (Per charge) (S$) Sentence (Months) Notes
Sarjit Singh s/o Mehar Singh v PP [2002] 2 SLR(R) 1040 Claimed trial 4,815.24 36
Viswanathan Ramachandran v PP [2003] 3 SLR(R) 435 Claimed trial 18,000 (estimated, amount misappropriated was US$9,000) 15 Sentence to run concurrently with an 18 months’ imprisonment term for a s 406 PC charge involving US$35,000. Global sentence of 18 months’ imprisonment.
Tan Tze Chye v PP [1997] 2 SLR 505 Claimed trial 1,000 3 Sentences to run concurrently. Global sentence of 3 months’ imprisonment.
500 0.75
PP v See Lee Fong (District Arrest Case No 003057/2014 & others) Pleaded guilty 2,348 4
PP v Sunny Choo Kay Huat (District Arrest Case No 033626/2012 & others) Pleaded guilty 4,400 2
PP v See Boon Kwang [2003] SGDC 66 Claimed trial 5,000 9 Sentences to run consecutively. Global sentence of 18 months’ imprisonment.
8,369.80 9
PP v Chan Weng Lim (MA/134/94/01) Claimed trial 15,000 36
PP v Tan Chong Pang Victor (District Arrest Case No 047721/2008 & others) Pleaded guilty 32,484 30 Sentence to run consecutively with a 24 months’ imprisonment term for a s 406 PC charge involving $73,795.50. Global sentence of 54 months’ imprisonment.
Muthukumaran Ramaiyan v PP [2015] SGHC 230 Claimed trial 24,000 8 Restitution of $8,000 made
PP v Leong Wai Nam [2010] 2 SLR 284 Pleaded guilty 4,000 12 Consecutive
1,300 10 Concurrent
1,500 10 Concurrent
48,000 36 Consecutive
Francis Wee Lam Khoon v PP (MA 332/96/01) Pleaded guilty 55,561.29 20 Sentence to run consecutively with a 16 months’ imprisonment term for a s 408 PC charge involving $35,687. Global sentence was 36 months.
PP v Eugene Sim (District Arrest Case No 932514/2016 & 1 other) Pleaded guilty 135,846.68 28 Other s 409 PC charges involving $84,567.92 taken into consideration (“TIC”) for sentencing; total sum of 220,414.60 misappropriated. Global sentence of 28 months. No restitution.
PP v Guo Linnan (District Arrest Case No 940366/2015 & others) Pleaded guilty 130,000 22 Restitution of $94,767.45 (approximately 72.9% of amount misappropriated).
PP v Mohammed Rafi bin Abdul Rashid [2016] SGDC 271 Pleaded guilty 115,715.76 28 No restitution.
Wong Kai Chuen Philip v PP [1990] 2 SLR(R) 361 Pleaded guilty 143,220.15 36 Sentences to run consecutively. Global sentence of 72 months for misappropriating a total of $1.84m (including TIC-ed charges). No restitution.
683,039.40 36
PP v Tan Cheng Yew and another appeal [2013] 1 SLR 1095 Claimed trial 1,500,000 72 Sentences to run consecutively. Global sentence of 144 months’ imprisonment. No restitution.
1,940,724.97 72

Plotting the cases involving amounts of up to $150,000 on a graph, it can be seen that certain cases buck the trend and may be regarded as outliers, to which no weight ought to be given in determining the appropriate preliminary sentence (see Graph 1: four outliers marked as red triangular points):

When all the cases are plotted on a graph (ie, not limited to cases up to $150,000), it can also be seen that, apart from the four red triangular points marked above, an additional point (new outlier identified and marked as a yellow rectangular point) also bucks the trend (see Graph 2: four earlier outliers marked as red triangular points, one new outlier marked as a yellow rectangular point):

The new outlier, marked as a yellow rectangular point, represents the 36 months’ imprisonment term which the accused in Philip Wong received for a s 409 PC charge involving $143,220.15. It may be contrasted with the 28, 22 and 28 months’ imprisonment terms which the accused persons in Public Prosecutor v Eugene Sim (District Arrest Case No 932514/2016 & 1 other), Public Prosecutor v Guo Linnan (District Arrest Case No 940366/2015 & others) and Public Prosecutor v Mohammed Rafi bin Abdul Rashid [2016] SGDC 271 received for s 409 PC charges involving $135,846, $130,000 and $115,716 respectively. As the accused persons in all four cases pleaded guilty, the new outlier may be caused by two factors: (a) first, Philip Wong is a relatively dated case, and the sum of $148,220.15 would have been a lot more significant in 1990 than it is today. Second, and more crucially, the accused in Philip Wong faced two s 409 PC charges, with the other charge involving $683,039.40. For the $683,039.40 charge, the judge also sentenced the accused to 36 months’ imprisonment, which sentence was to run consecutively with the sentence for the $148,220.15 charge, giving the offender a global sentence of 72 months’ imprisonment. Hence, it is likely that the judge in Philip Wong similarly adopted the global approach advocated in the later case of Teo Cheng Kiat, such that little regard was given to the individual sentences in the case.

Best fit curves for s 409 cases (without outliers)

Disregarding the five highlighted outliers, the following best fit curves for the s 409 PC cases are revealed (see Graphs 3 and 4):

Legend to Graph 3
Blue dotted curve Best fit curve for s 409 PC cases (without outliers) for amounts up to $150,000
Orange triangles Contested s 409 PC cases for amounts up to $150,000 (without outliers)
Green rectangles Uncontested s 409 PC cases for amounts up to $150,000 (without outliers)
Legend to Graph 4
Blue dotted curve Best fit curve for s 409 PC cases (without outliers) for amounts up to $2,000,000
Orange triangles Contested s 409 PC cases (without outliers)
...

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8 cases
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    • Singapore
    • District Court (Singapore)
    • 13 Abril 2020
    ...Manpower Act: Chiew Kok Chai v Public Prosecutor [2019] SGHC 169. Section 409 of the Penal Code: Public Prosecutor v Ewe Pang Kooi [2019] SGHC 166. Section 331(3A) read with s 240(1) of the Securities and Futures Act: Public Prosecutor v Tan Seo Whatt Albert and another appeal [2019] SGHC 1......
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    ...Manpower Act: Chiew Kok Chai v Public Prosecutor [2019] SGHC 169. Section 409 of the Penal Code: Public Prosecutor v Ewe Pang Kooi [2019] SGHC 166. Section 331(3A) read with s 240(1) of the Securities and Futures Act: Public Prosecutor v Tan Seo Whatt Albert and another appeal [2019] SGHC 1......
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