Public Prosecutor v Kalpanath Singh

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 01 September 1995
• Neutral Citation: [1995] SGHC 211
• Docket Number: Magistrate's Appeal No 233 of 1994
• Date: 01 September 1995
• Year: 1995
• Published date: 19 September 2003
• Plaintiff Counsel: Lee Sing Lit and Chia Wee Kiat (Deputy Public Prosecutors)
• Citation: [1995] SGHC 211
• Defendant Counsel: Peter Yap (Peter Yap & Co) and Suman Kalpanath Singh (Kalpanath & Co)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Whether defective,Property,Whether accused cheated client or client's company,Offences,Form of charge,Whether defence prejudiced,Scope of offence,Charge,Whether elements of charge proved,Cheating,ss 415 & 420 Penal Code (Cap 224),Criminal Law

After an unnecessarily protracted trial of 107 days spanning two whole years, the respondent was acquitted of the two charges which follow:

You, Kalpanath Singh s/o Ramraj Singh, male, 47 years old, NRIC No 1116101/D, are charged that you, on or about 18 September 1987, at No 101A, Upper Cross Street, #12-17, People`s Park Centre, Singapore, did cheat one Madam Lee Sim Yow by deceiving her into believing that a sum of $5,000 was required to be paid into court as a deposit in S 2425/87 and thereby dishonestly induced the said Lee Sim Yow to deliver a sum of $5,000 to you, and you have thereby committed an offence punishable under s 420 of the Penal Code (Cap 224).

[And]

You, Kalpanath Singh s/o Ramraj Singh, male, 47 years old, NRIC No 1116101/D, are charged that you, on or about 21 January 1988, at No 101A, Upper Cross St, #12-17, People`s Park Centre, Singapore, did attempt to cheat one Madam Lee Sim Yow by deceiving her into believing that a sum of $5,000 was required to be paid into court as a deposit in S 2425/87 and thereby dishonestly induced the said Lee Sim Yow to deliver a sum of $5,000 to you, and you have thereby committed an offence punishable under s 420 read with s 511 of the Penal Code (Cap 224).

The prosecution appealed against his acquittal. After hearing detailed submissions from both sides which lasted two and a half days, I allowed the appeal on both charges. I now give my reasons for doing so.

The prosecution case

Sometime in December 1986, a company known as Gillman Video & Trading Pte Ltd (Gillman) was incorporated to carry on the business of renting out video tapes to members of the public. Lee Sim Yow (Lee), a director and shareholder of Gillman, was the main force behind the business. Tiew Siew Chye (Tiew), the other director and shareholder, was a sleeping partner in the venture. At that time, the licensed distributor of video tapes of popular Hong Kong television serials and films in Singapore was a company called Crown Video (S) Pte Ltd (Crown Video). Crown Video offered to enter into a contract with Gillman by which Gillman, as a sub-licensee, would be supplied with video tapes of Crown Video origin for its business. Unhappy with some of the proposed terms and conditions, Lee refused the offer. Instead, she purchased video tapes from some other sources, including a company known as Jomac Marketing Pte Ltd (Jomac) to carry on her business.

Consequently, Television Broadcasts Ltd, HK-TVB International Ltd and Crown Video (the plaintiffs) commenced an action in the High Court, namely, S 2425/87, against Gillman for infringement of copyright. On 14 September 1987, the plaintiffs obtained an ex parte interim injunction (the first injunction) against Gillman. In the afternoon of 17 September 1987, representatives of the plaintiffs raided Gillman`s premises and seized many video tapes. Lee rang up her husband, Roger Yeo Kong (Yeo), then a senior police officer, to inform him of the raid. Shortly after, Yeo arrived at the scene. He contacted an old friend, one MS Retnam (Retnam), now deceased, for advice. Retnam was an advocate and solicitor whom the couple had previously instructed on two matters, namely, the incorporation of Gillman and the transfer of some shares. Upon Retnam`s recommendation, the couple decided to consult the respondent, an advocate and solicitor practising in the firm of Kalpanath & Co.

At about 5pm on the same day, the couple called at the respondent`s office at People`s Park Centre. They were met at the reception area by Retnam who introduced them to the respondent. Lee handed the papers relating to the first injunction to the respondent. After looking at them, the respondent assured Lee that she had a strong case and need not worry at all. He promised he would get the injunction lifted within a few days` time. Her seized tapes would also be returned. Then, they discussed the legal fees involved. The respondent said he would charge Lee `$1,000 plus` for his work. When Lee pressed him to be more specific, the respondent clarified that he meant not more than $1,500 and not less than $1,000 for the entire case. Lee was agreeable to this.

The respondent wanted Lee`s written authorization for him to act in the matter. He produced two copies of a standard form used in his office called the warrant to act and asked Lee to complete them. The copy adduced as evidence is substantially reproduced, with the handwritten portions set in parentheses, as follows:

Warrant to act

Re: [S 2425/87]

I/We [0258290B Lee Sim Yow] of [Gillman Video & Trading Pte Ltd] hereby authorize M/s Kalpanath & Co, Advocates & Solicitors, ... to act for me/us in respect of the above matter ...

And it is hereby agreed that:

(a) the non-refundable retainer now payable by me/us is [$5,000 total fee for the whole case. No further charges. Initialled].

(b) ...

(c) ...

Dated this [17] day of [09] 19[87]

Signature: [Signed]

Witness: [Signed]

Lee filled in the necessary particulars in the top portion of both copies of the warrant to act. She asked the respondent how much she had to pay him upfront as the non-refundable retainer. He assured her that she would have to pay him only when the case was over. After signing and dating the two copies, she returned them to the respondent. At that time, the endorsement and the initial against item (a) were not on either of the copies. They were added subsequently without her knowledge and consent.

Just as the couple was about to leave the office, the respondent told Lee that a sum of $5,000 was required as a refundable deposit to be placed with the court in respect of the case. In fact, the sum of money was needed urgently. Shocked by the news, Lee turned around to check with Yeo if there was indeed such a requirement. Yeo was unable to assist because he was not at all familiar with court procedure in civil matters. The respondent assured them that the money would be returned at the end of the case.

Not having $5,000 to spare, Lee and Yeo decided to approach a family friend, one Yap Leong Chye (Yap) to borrow the money. As a shareholder of Jomac, Yap was also in the video-letting trade. Yap was told that they needed $5,000 urgently as a deposit to be placed in court. On the morning of 18 September 1987, Yap gave them $5,000 cash. Later in the same morning, Lee visited the respondent at his office and handed him a cheque for $5,000 dated 17 September 1987. Lee did not receive a receipt from the respondent to acknowledge the payment.

On 26 September 1987, Lee called at the respondent`s office where she was introduced to one Mahendran Mylvaganam (Mahendran), a legal assistant in the firm. Mahendran took a statement from her. On 15 October 1987, she was summoned to see the respondent urgently. It transpired that Mahendran had left the respondent`s firm without notice and the respondent needed more information from her. The information was necessary for the respondent to prepare an affidavit in compliance with the first injunction. This time, Lee was brought to see one Khalid bin Abdullah (Khalid), the clerk at the firm, to whom she gave another statement.

On 16 October 1987, Lee went to the respondent`s office to affirm the affidavit prepared on her behalf. Despite her requests to accompany the respondent to all court hearings, Lee was not informed of any pending. In fact, 16 October 1987 was the return date of the first injunction. Unknown to her, and without any instructions from her, Ravindran Kumaran (Ravindran), another one of the respondent`s legal assistants, appeared in court on 16 October 1987 and consented to the continuation of the first injunction until the trial of the action. The consent order was not served on Lee.

Contrary to the respondent`s promise, the video tapes were not returned quickly. This was of grave concern to Lee who had many customers demanding for the video tapes. However, sometime in late September or early October 1987, the respondent told Lee that the first injunction had been lifted and that Lee could resume her business. In turn, Lee informed her clerk one Foo Bee Kheng (Foo) of the good news. Business continued as before. However, on 11 January 1988, a second raid was conducted by the plaintiffs on Gillman`s premises. The respondent could not be reached at his office. Instead, Ravindran spoke to Lee over the telephone and advised her to let the raiding party seize the video tapes pursuant to the second injunction of court (the second injunction).

Accompanied by Yeo, Lee met the respondent at his office on 18 January 1988. She demanded for an explanation why her shop was raided for a second time. The respondent explained that the plaintiffs must have made a mistake and promised that he would resolve the matter. He added that a further sum of $5,000 was required as a refundable court deposit because this was a separate injunction from the first. Lee was upset to hear the news.

On 21 January 1988, Lee finally raised the required sum of money and prepared a cheque of $5,000 which she handed to the respondent. She was told by the respondent that the case would be heard on 6 February 1988. Later in the same day, Yeo rang to say that Yap, whose video library had also been raided, said that there was no such thing as a court deposit. Lee contacted Yap who repeated what he had already told Yeo. Her suspicions aroused, Lee called up the subordinate courts and discovered that her case was not due to be heard on 6 February 1988. In the end, Lee turned to her old friend John Fong Chee Yang (John Fong), an advocate and solicitor with the firm of Cheng, Fong & Tan, for advice. She told John Fong a little about her case. When John Fong confirmed there was no such thing as a court deposit, Lee realized she had been deceived. Immediately, she contacted her bank to stop payment on the cheque.

On 22 January 1988, Lee consulted John Fong with the papers relating to the second...