Public Prosecutor v Lim Kuan Ngee

• Jurisdiction: Singapore
• Judge: Marvin Bay
• Judgment Date: 19 October 2020
• Neutral Citation: [2020] SGDC 229
• Citation: [2020] SGDC 229
• Published date: 22 December 2020
• Year: 2020
• Hearing Date: 02 March 2020,15 November 2019,22 April 2018,05 June 2020,23 April 2018,01 April 2020,24 June 2020,05 July 2019,08 July 2019,04 July 2019,23 August 2018,21 August 2018,03 July 2019,30 March 2020,09 July 2019
• Docket Number: District Arrest Case No DAC-921691-2017 and 23 others, Magistrate’s Appeals No MA-9177-2020-01, MA-9524-2020-01 and MA-9524-2020-02
• Plaintiff Counsel: Eric Hu and Gregory Gan (Attorney-General's Chambers)
• Defendant Counsel: Selva Kumara Naidu (Liberty Law Practice LLP)
• Subject Matter: Criminal Procedure and Sentencing,Acquittal,Mens rea not sufficiently established in first charge (of 24 charges) to support conviction,Sentencing,Section 47(1) (c) Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act - Parity in Sentencing and Aggregate Sentence
• Court: District Court (Singapore)

District Judge Marvin Bay: Introduction

This case, which is the progenitor of three separate appeals, concerns the dealings of the accused; Mr Lim Kuan Ngee (“Mr Lim”) who faced 24 charges under Section 47(3) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) for repeated dealings with large quantities of stolen Fuji Xerox printer toners, which were filled cartridges intended for use in heavy duty printers installed in companies and institutions which required such industrial capacity machines. The toners were cylindrically shaped and filled with powdered toner dye. These came in sets packed with the said powdered toner in the four colours of cyan (blue), yellow, magenta (red) and black. The assessment of whether the toner cartridges were new (and their remaining capacity if they were not), could be determined by weighing the cartridges, with lightened cartridges being the tell-tale indicia of their prior use. The toner cartridges were also equipped with a microchip which indicated that the toner was empty.

The proceeded charges arose from Mr Lim’s purchase at least 40 such toners on 24 separate occasions. Mr Lim had acquired substantial quantities of toners from three individuals, Muhammad Shahrin Bin Kasamen (“Mr Shahrin”), Redzuan Bin Margono (“Mr Redzuan”) and Mohammad Azwan bin Ahmad (“Mr Azwan”), who were employees of Fuji Xerox Singapore (“Fuji Xerox”). The problem with this series of acquisitions was the fact that all of the toner cartridges had been purloined items, obtained from Fuji Xerox as part of a deeply premeditated conspiracy by the three men. The fundamental question in this case thus was whether, how and when Mr Lim (who had dealt directly only with Mr Shahrin and Mr Redzuan) would have been aware of the dubious provenance of the printer toners.

Background facts

The prosecution contends (and the defence does not disagree) that the toners Mr Lim acquired were benefits from criminal conduct, as Mr Shahrin and Mr Azwan had been entrusted with these toners by their employer, Fuji Xerox Singapore (“Fuji Xerox”) while they were assigned to service corporate clients which included BNP Paribas. In this regard, Mr Shahrin, Mr Redzuan and Mr Azwan have readily confirmed that the toners sold to Mr Lim were misappropriated from Fuji Xerox.

The criminal activity had been possible because of exploitable gaps in Fuji Xerox’ work system. These areas of vulnerability were duly exploited by Mr Shahrin and Mr Azwan, who had ordered extraneous quantities of toners, which were well above the operational needs to service their corporate clients, to facilitate their acts of criminal misappropriation. Both Mr Shahrin and Mr Azwan have pleaded guilty and been sentenced for their respective offences, and Mr Redzuan disciplined by Fuji Xerox.

Where there are no issues of the fact of Mr Lim’s purchase of the toners from Mr Redzuan (as well as his familiarity with Mr Shahrin), and their identity as benefits from criminal conduct, the remaining issues would include the quantity of the tones, and whether they conformed to the charge that at least forty separate toners had been purchased on each occasion. It should be noted that the toners came in sets with one set of toners containing four toner cartridges of different colours – black, cyan, magenta and yellow. The charges do not purport to state the exact quantity of the stolen printer toners supplied, with the prosecution’s charges stated the minimum quantities supplied over certain regular intervals.

As this genre of CDSA offences involve the ‘downstream’ activities of processing and handling of proceeds of crime, the inevitable question in issue would be the nature and extent of the accused person’s knowledge of the predicate offence. Hence, the principal question connected to criminal culpability is whether Mr Lim had reasonable grounds to believe that the toners he purchased from Mr Shahrin and Mr Redzuan were benefits from criminal conduct.

Mr Lim’s case is essentially that he had no intent to deal in stolen goods, and he had been lulled by his belief that Mr Redzuan (who had fronted the transactions for the group of errant Fuji Xerox employees) had been a deliveryman who had come across the toners in the course of his work, and been permitted to collect them to dispose of the items at his own discretion. It is not disputed that Mr Shahrin, who had often accompanied Mr Redzuan, had remained in the background, and not made any representations to the accused

It is a relevant aspect of this case, especially in deriving an appropriate tariff against Mr Lim’s manner of offending, that two of the three implicated men; Mr Azwan and Mr Shahrin, had also supplied toners to another individual Mr Sahirudin Bin Ibrahim¹. In certain aspects, Mr Sahirudin seemed more complicit, as he had, from his admissions in the Statement of Facts, actually gone to Fuji Xerox’s premises and provided logistical support in collecting the purloined printer toners.

The appeals

I had acquitted Mr Lim for the first charge; DAC-921691-2017, where Mr Lim stood accused of acquiring 40 printer toners despite reasonable grounds to believe that these toners had been the benefits of criminal conduct on a “first occasion” of a period which spanned 2014 to 2015 I was not convinced that Mr Lim’s mens rea had been proven beyond reasonable doubt in respect of his receipt of toners on this first occasion, which was also first physical encounter with a co-offender; Mr Redzuan Bin Margono. This formed the basis of the prosecution’s appeal against acquittal in MA-9177-2020-01. The next appeal; MA-9524-2020-01, had been filed by the accused in respect of his convictions, and the sentences meted, for the remaining 23 charges. The third appeal; MA-9524-2020-02, had been lodged by the prosecution against the same sentences imposed for the said 23 charges.

The charges

The twenty-four charges were framed similarly. The first charge as set down below should serve as a representative reference to the other twenty-three, which of course ran in seriatim to reflect the twenty-four instances where Mr Lim had transacted with the Mr Shahrin to obtain at least the specified quantity of printer toners despite having a reasonable basis to believe that these were benefits from criminal conduct. The first charge², preferred in its original form against Mr Lim on 16 April 2018 charges the accused, a Singaporean, then aged 51 was as follows:

(Mr Lim is) charged that (he), on a 1st occasion sometime between 2014 and 2015, in Singapore, having reasonable grounds to believe that certain property was another person’s benefits from criminal conduct, acquired that property, to wit, (that he) purchased at least 40 printer toners from Muhammed Shahrin Bin Kasamen, and (he has) thereby committed an offence under section 47(3) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed), punishable under section 47(6)(a) of the same Act.

At the close of prosecution’s case, the Public Prosecutor applied to amend the charge³ to also reflect “Redzuan Bin Margono”, when it became evident in the course of proceedings that Mr Redzuan was a contributor to the pool of toners received by the accused, albeit his taking from Fuji Xerox was on a smaller scale than Mr Shahrin’s misappropriations.

The Law

The applicable provisions would be sections 47(3) and 47(6) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“CDSA”). Section 47(3) of the CDSA states: (3) Any person who, knowing or having reasonable grounds to believe that any property is, or in whole or in part, directly or indirectly, represents, another person’s benefits from criminal conduct, acquires that property, or has possession of or uses such property, shall be guilty of an offence.

Section 47(6) of the CDSA provides the following punishments: (6) Any person who commits an offence under this section shall be liable on conviction — (a) if the person is an individual, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding 10 years or to both;

or (b) if the person is not an individual, to a fine not exceeding $1 million.

The parties

The following witnesses were called in the course of the trial: PW1 SSI Colin Joseph (Investigation officer) PW2 Lai Toh Meng (Fuji Xerox Operations Manager) PW3 Stephanie Yoong Sook Fah (Fuji Xerox Senior Manager) PW4 Ryan Goh Ming Hai (Fuji Xerox Customer Service Manager) PW5 Muhammad Shahrin Bin Kasamen (Offender in predicate offence) PW6 Redzuan Bin Margono (Unprosecuted person implicated in predicate offence) PW7 Muhammad Azwan Bin Ahmad (Offender in predicate offence) DW1 Lim Kuan Ngee (Accused) DW2 Nur Liyana Binte Johal (Employee of Accused’s firm)

Connected parties

There were in actuality four individuals connected to the pillage of toners from Fuji Xerox; Mr Shahrin, Mr Azwan, Mr Redzuan, and a fourth individual; Ismail Bin Jaffar. The scope of their duties included the monitoring of usage of the site they had been assigned to, and re-stocking by the ordering of printer toners to replace the depleted cartridges. Mr Shahrin and Mr Azwan were assigned to service Fuji Xerox printers in BNP Paribas Bank⁴, Mr Redzuan at ANZ Bank, with Mr Ismail assigned to Republic Polytechnic. Mr Shahrin and Mr Redzuan had supplied the toners to the accused; Mr Lim, while Mr Azwan had been Mr Sahirudin’s source. Mr Sahirudin had, in turn, supplied toners to a certain Neo Teck Heng, at a profit.

As indicated above, there is no dispute whatsoever that the toners Mr Lim acquired were benefits from criminal conduct. All parties agreed to the position of Mr Shahrin and Mr Azwan having been entrusted with these toners by their employer, Fuji Xerox while they were...