Public Prosecutor v Lai Tuck Meng and Tan Jwee Shen

• Jurisdiction: Singapore
• Judge: Mathew Joseph
• Judgment Date: 25 May 2016
• Neutral Citation: [2016] SGDC 135
• Docket Number: DAC 50323/2011 & DAC 19498/2012, Magistrate’s Appeal No. MA 160-161/2015/01-02
• Published date: 03 June 2016
• Year: 2016
• Citation: [2016] SGDC 135
• Plaintiff Counsel: Leong Wing Tuck, Jiang Ke Yu and Asoka Markandu
• Defendant Counsel: Yusfiyanto Yatiman
• Court: District Court (Singapore)

District Judge Mathew Joseph: Introduction

The two Accused, Lai Tuck Meng and Tan Jwee Shen, were tried jointly on one charge each under section 411 read with section 109 of the Penal Code, Chapter 224 for conspiring to dishonestly receive 150 metric tonnes of marine fuel oil valued at about S$109,549.50, when it was loaded onto the bunker barge MV Luna on 26 November 2007, when they had reason to believe it was stolen property. They were both convicted of their respective charges. Lai Tuck Meng was sentenced to four months’ imprisonment. Tan Jwee Shen was sentenced to five months’ imprisonment. Both accused being dissatisfied, have filed an appeal against their conviction and sentence. The Prosecution have also cross-appealed against sentence imposed in respect of both accused.

The Charges

The two Accused were jointly tried on the following charges. (a) Lai Tuck Meng

DAC 50323/2011

You, are charged that you, in November 2007, in Singapore, did engage with one Tan Jwee Shen (NRlC No. xxx) in a conspiracy to do a certain thing, namely, to dishonestly receive stolen property, and in pursuance of the conspiracy and in order to the doing of that thing, an act took place on or about 26 November 2007 at Caltex terminal located at No. 210 Jalan Buroh, Singapore, to wit, stolen property of approximately 150 metric tonnes of marine fuel oil, valued at approximately S$109,549.50, which you had reason to believe was stolen property, was loaded onto the bunker barge, MY Luna, which offence under section 411 of the Penal Code, Chapter 224 (1985 Rev Ed) was committed in consequence of your abetment, and you have thereby committed an offence punishable under section 411 read with section 109 of the Penal Code, Chapter 224 (1985 Rev Ed).

(b) Tan Jwee Shen

DAC 19498/2012

You, are charged that you, in November 2007, in Singapore, did engage with one Lai Tuck Meng (NRIC No. xxx) in a conspiracy to do a certain thing, namely, to dishonestly receive stolen property, and in pursuance of the conspiracy and in order to the doing of that thing, an act took place on or about 26 November 2007 at Caltex terminal located at No. 210 Jalan Buroh, Singapore, to wit, stolen property of approximately 150 metric tonnes of marine fuel oil, valued at approximately S$109,549.50, which you had reason to believe was stolen property, was loaded onto the bunker barge, MV Luna, which offence under section 411 of the Penal Code, Chapter 224 (1985 Rev Ed) was committed in consequence of your abetment, and you have thereby committed an offence punishable under section 411 read with section 109 of the Penal Code, Chapter 224 (1985 Rev Ed).

Overview

This case concerned the unauthorised loading of 150 metric tonnes of marine fuel oil on board MV Luna, a bunker barge operated by Alliance Oil Trading (“AOT”) on 26 November 2007 at Caltex’s terminal located at No. 210 Jalan Buroh, Singapore (“the terminal”). It was the last in a series of cases to be tried in the State Courts involving the unauthorised loading of MFO from the Caltex Terminal onto various Bunker Barges.

AOT was in the business of supplying marine fuel oil to ships. Lai Tuck Meng was the Operations Manager of AOT at the material time. Lai Tuck Meng was one of the two Directors of AOT at the material time.

The Prosecution Case

The Prosecution’s case is that on 26 November 2007, approximately 150 MT of MFO 380 CST, valued at approximately S$109,549.50, which was stolen property, was dishonestly received by the two accused persons who were in conspiracy with each other.

Shanker (PW5), the former Acting Shift Superintendent at Caltex Terminal, found excess fuel at the terminal. Upon discovery of the excess fuel, he contacted Remy (PW6), a former Petroleum Surveyor with Intertek. They decided to sell the excess fuel. Remy then contacted Hussein, a broker, who in turn, contacted Faizal (deceased). Faizal then approached the First Accused Lai to sell the excess fuel.

The Prosecution case was that there were three phone calls made by the First Accused to the second Accused Lai :- First phone call on 23 November 2007 wherein he informed the Second Accused about the availability of 100 to 200 MT of excess fuel at a price of above $400 per MT and the Second Accused informed him to negotiate the price down¹. The Second phone call was made after negotiating the price down to $400 per MT with Faizal, when the First Accused hen called the Second Accused to inform him about the price. The Second Accused then gave him the final approval to proceed with the purchase of the excess fuel². The Third phone call was when the First Accused found out that the MV Luna was going to load the excess fuel at the Caltex Terminal, he had called the Second Accused to inform him of this fact³.

On 26 November 2007, the barge MV Luna loaded the nominated quantity and also the said excess fuel. After the loading, the duty programmer recorded the quantity of excess fuel in the worksheet. The First Accused then calculated the quantity based on the loading density and found it to be 150 MT. He later communicated this figure to the Second Accused so that the Second Accused could prepare the cash for payment. One or two days later, the First Accused received $60,000 in cash from the Second Accused and met Faizal and handed him this S$60,000. Faizal gave the First Accused a sum of S$1,500 as a commission for the aforesaid transaction.

It is undisputed that there was no documentary evidence by way of receipts, invoices, and loading documents in respect of the “excess” MFO that was loaded onto the MV Luna on 26 November 2007.

It was also the Prosecution case that this transaction involving the excess fuel was recorded in the data entry records kept by Robert Choo (PW9), who was requested by the Second Accused Lai to keep such records. Hard copies of all the data entry records for the month kept by Robert Choo were handed to the Second Accused and Lionel Lai Yeow Wun (“Lionel Lai”), a Director of Alliance Oil Trading, a few days after the end of each month.

It was the Prosecution case that the circumstances of loading, the continuous loading of the nominated quantity and excess fuel at the Caltex Terminal and the lack of documentation would have put both accused persons on notice so that they would either know or have reason to believe that the excess fuel of 150 MT was stolen property.

The Defence Case

The Defence Case for the first accused Lai generally was that there was no contemporaneous record of any Excess MFO being loaded onto the MV Luna. The First Accused also submitted that the grade of the excess MFO and the currency of the transaction were not clear. Further, that the Statement of the First Accused was based on the spread sheet (P 39) prepared by Robert Choo (PW 9) and P 39 is inadmissible in evidence.

The Defence Case for the second Accused Tan was that his primary responsibility was the business development of AOT. He had a broad overview of AOT’s operations but was not involved in the day-to-day operations. The defence submitted generally that the First Accused as the Marketing Manager was authorised to make purchases of marine fuel in consultation with Lionel Lai. The First Accused was also in charge of purchasing excess fuel. He dealt with the brokers who offered excess fuel in small parcels. The First Accused had the discretion to purchase huge quantities of fuel and he did not have to come to the Second Accused for permission in respect of small parcels of excess fuel. The Second Accused denied that he knew or had reason to believe that the excess fuel loaded onto MV Luna on 26 November 2007 was stolen property.

As a general observation, I should add that both Defence Counsel have also taken issue with several areas of evidence of almost every Prosecution witness who had testified in court. In particular, the Defence has claimed that the Prosecution have misrepresented the evidence. However, I do not propose to address every argument in a point-by-point manner. Many arguments are minor and are of little relevance to the key issues at hand. I have focused instead on the key elements of the dishonest receipt of stolen property by the two accused persons Lai and Tan and the conspiracy between them as set out below.

Issues before the Court

Under section 411 of the Penal Code, to satisfy the ingredients of the charge, there must be 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 therefore incumbent on the Prosecution to show the following:- that 150 MT of MFO was loaded on the MV Luna on 26 November 2007; that the 150 MT of MFO loaded on the MV Luna was stolen property; that the two accused had conspired to dishonestly receive the 150 MT of MFO having reason to believe that the 150 MT of MFO was stolen property.

Whether 150 MT of MFO was loaded on the MV Luna on 26 November 2007 Submissions by Prosecution

Background

As background, the Prosecution submitted that it is not disputed that the facts of the case showed that PW 5 Shankar s/o Balasubramaniam was an operations executive at the Caltex Terminal. As part of his role, which included being the shift superintendent on duty at the control room, Shankar would control the loading operations at the Terminal, including the loading of barges, and track the movement of MFO at the Terminal. In the course of loading operations, minor discrepancies in shore tank readings would arise, which led to ‘gains’ and ‘losses’ of MFO – for example, there could be a variance between the reading on the shore tank and that on the receiving barge, within the industry tolerance level of 0.5%, and any amount of ‘gains’ at the shore tank was retained by the Terminal. For...