Public Prosecutor v Heng Chiou Tian

• Jurisdiction: Singapore
• Judge: Wong Keen Onn
• Judgment Date: 31 August 2005
• Neutral Citation: [2005] SGDC 184
• Citation: [2005] SGDC 184
• Court: District Court (Singapore)
• Published date: 07 October 2005
• Plaintiff Counsel: ASP Kishore Rai and ASP Bernard Pong
• Defendant Counsel: Chia Boon Teck (Chia Yeo and Partnership)
• Subject Matter: Criminal Law,Offences,Property,Criminal breach of trust by agent,Accused, an executive director of a company, retaining for himself money received by him from sale of company goods,Sentence,Section 409 Penal Code (Cap 224, 1985 Rev Ed),Criminal Procedure and Sentencing,Sentencing,Principles,Aggravating factors,Substantial amount of money misappropriated,Accused abusing high degree of trust reposed in him by fellow company directors,Offence committed over a long period of time,Small amount of restitution,Similar charges taken into account for sentencing purposes,Whether aggravating factors outweighing mitigating factors,Mitigating factors,First offence,Accused having no criminal record,Serious offence committed,Lack of antecedents only amounting to neutral factor in face of need for deterrence,Plea of guilt,Accused pleading guilty to charge,Strong evidence against accused,Weight to be given to plea of guilt,Public service,Accused contributing to charitable causes over the years,Such actions not falling within category of distinguished public service or services of substantial value to the nation or community,Weight to be given to charitable donations,Surrendering to police and co-operating with police,Accused surrendering to police and co-operating with them after being unable to repay to company the money taken by him,Weight to be given to accused's actions

31 August 2005

District Judge Wong Keen Onn

1 This is an appeal against sentence by the accused. The accused pleaded guilty before me to one charge of criminal breach of trust as an agent under section 409 of the Penal Code, namely:

“DAC 25096/05 (First charge)(Exhibit P1)

You, Heng Chiou Tian, Male/42 Years, NRIC No: S 1616333/C, are charged that you, between 2003 and 2004 in Singapore, being the Executive Director of the One Transmission Pte Ltd (Reg No: 200304478M) (“the Company”), and in such capacity as an agent of the Company, being entrusted with funds of the Company, did commit an offence of criminal breach of trust, when you dishonestly misappropriated $24,429.30 in cash, being proceeds from the sale of goods by the Company to five of its customers, particulars of which are annexed in the schedule hereto and form part of this charge, and you have thereby committed an offence punishable under Section 409 of the Penal Code (Chapter 224, 1985 Revised Edition).

2 Upon his conviction on the charge, the accused consented to 2 similar counts of committing criminal breach of trust as an agent under Section 409 of the Penal Code be taken into consideration for the purpose of sentencing. He was sentenced to 20 months’ imprisonment.

Facts

3. The accused admitted to the Statement of Facts (Exhibit B) without qualifications. The material portions of the Statement of Facts are reproduced below:

1. … ……….

2. At the material time, between 2003 and 2004, the accused (Heng Chiou Tian, male 42 years old) was the Executive Director of The One Transmission Pte Ltd, registration number 200304778M, (the “Company”) and was left to oversee the entire operations and day to day running of the Company. The Accused was thus entrusted with the funds of Company, as an agent of the Company.

3. The investigations carried out by the Commercial Affairs Department revealed that between 2003 and 2004, the Accused received a total of $24,429.30 in cash from five of the Company’s customers as listed below:

Customer	Invoice	Invoice Date	Invoice Amount	Amount received
Duta Teknik	I 352-003 I 3002-0603 I 3007-0603 I 3018-0703	13/05/03 9/06/03 18/06/03 10/07/03	$500.00 $600.00 $600.00 $600.00	$2300
K. P. P.; Industech Control	I 3088-0204	26/02/04	$6,484.30	$6,484.30
PT. Jupiter Mitra Setia	I 3029-0903 I 3104-0404	1/09/03 20/04/04	$5,300.00 $7,950.00	$5,300.00 $7,950.00
Sacoplast	I 3100-0404	3/04/04	$1,314.00	$1,314.00
Terang Mitra	I 3085-0204	21/02/04	$15,300	$1081.00
			Total	$24,429.30

4. The monies the Accused had received were proceeds from the sale of goods by the Company to the five customers, which rightfully belonged to the Company and should have been banked into the Company’s accounts the following day. However, the Accused the said cash and kept the monies for himself.

5. The Accused had therefore committed an offence of criminal breach of trust under Section 409 of the Penal Code (Chapter 224, 1985 Revised Edition) by dishonestly misappropriating the said $24,429.30.

6. The Accused admitted dishonestly misappropriating the said cash whilst being employed as an Executive Director of the said company”.

Mitigation

4. The accused is forty-two years of age and is a first offender. He has two children, aged 4 and 6 years, and his wife is an Indonesian. He had pleaded guilty at the first opportunity. As for the circumstances leading to the commission of the offences concerned, the accused informed the court that he had taken the money from the company but “had intended to return them in good time without prejudice to the company”. However, he was not able to do so subsequently. Thereafter he informed his fellow directors and entered into a written agreement to repay to the company. According to counsel, the accused surrendered to the police on 15 February 2005 as he was overcomed with guilt and remorse. This was after the accused had agreed to repay the company. Between July and December 2004, the accused had only managed to make restitution of $9,114. In addition, counsel urged the court to take into account the accused’s contribution to Villa Francis for the Aged, a charitable institution (see Exhibits D and E).

Prosecution’s address

5. The prosecution did not submit on sentence but highlighted to the court that the amount involved was $71,906.82 and indicated that it was substantial. The amount that the accused had paid back was $9,114 and that only amounted to 12.7 per cent of the total amount misappropriated.

Reasons for the Sentence

6. The gravity of the offence of criminal breach of trust as an agent under s 409 of the Penal Code is reflected in its maximum punishment prescribed by law. Such an offence carries with it mandatory imprisonment either up to life imprisonment or 10 years imprisonment and the offender is also liable to a fine.

7. Criminal breach of trust as an agent per se, has long been regarded by our Courts, as well as in other common law jurisdiction, as a serious offence which warrants a substantial term of imprisonment save in extremely exceptional circumstances: see Wong Kai Chuen Phillip v PP [1991] MLJ 321, Sarjit Singh s/o Mehar Singh v PP [2002] 4 SLR 762, PP v Lee Meow Sim, Jenny [1993] 3 SLR 885, PP v Mohammad Abdullah, Ang Swee Kang [1991] 2 MLJ 368 and R v Barrick (1985) 81 Cr.App R 78. It has been well established in the cases of R v Barrick and Wong Kai Chuen Phillip v PP that certain features might affect the gravity of any case of breach of trust. Besides the sum involved, the other factors would include, for instance, the quality and degree of trust reposed in the offender, the period over which the fraud have been perpetrated, the effect on the victim, the use to which the money dishonestly taken was put, the impact on the public and public confidence, and the matters in mitigation which were relevant to the offender himself.

8. It is trite law that each case must be decided on its own facts: see Amir Hamzah bin Berang Kutty v PP [2002] SGHC 307; Soong Hee Sin v PP [2001] 2 SLR 253; PP v Ng Tai Tee Janet [2001] 1 SLR 343 and Gan Hock Keong Winston v PP [2002] 4 SLR 299. Notwithstanding this, past sentencing precedents would, in my view, be useful as a guide in assisting the court to arrive at the appropriate sentence, but after taking into account the facts and circumstances of the particular case presently before the court.

9. In Gopalakrishnan Vanitha v PP [1999] 4 SLR 307, the appellant was convicted after trial on 3 charges of criminal breach of trust under s 408 of the Penal Code (which carries a lower maximum punishment than section 409 Penal Code) involving the sums of $11,369.73, $12,440 and...