Public Prosecutor v Low Kok Heng

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 31 July 2007
• Neutral Citation: [2007] SGHC 123
• Citation: [2007] SGHC 123
• Defendant Counsel: Foo Maw Shen and Ong Wei Chin (Yeo Wee Kiong Law Corporation)
• Published date: 01 August 2007
• Plaintiff Counsel: Vincent Leow (Attorney-General's Chambers)
• Date: 31 July 2007
• Docket Number: Magistrate's Appeal No 150 of 2006
• Court: High Court (Singapore)
• Subject Matter: Statutory Interpretation,Section 9A Interpretation Act (Cap 1, 2002 Rev Ed),Interpretation act,Offences,Whether defence of innocent intention satisfied,Whether "or" could mean "and",Whether purposive approach applicable,Whether strict construction rule of penal statutes applicable,Construction of statute,Insolvency Law,Sections 141(1)(a), 133 Bankruptcy Act (Cap 20, 2000 Rev Ed),Undischarged bankrupt obtaining credit without disclosing bankruptcy status,Purposive approach,Whether extrinsic aids could be relied upon,Ambiguity,Extrinsic aids,Bankruptcy

31 July 2007

V K Rajah JA:

1 The penal provisions of the Bankruptcy Act (Cap 20, 2000 Rev Ed) (“the Act”) play a pivotal role in the effective administration of bankrupt estates through the designed sanctions. These provisions are intended to safeguard the interests of a bankrupt’s creditors and the wider public in so far as these diverge from those of the bankrupt. Among other things, these provisions:

(a) prescribe and punish conduct which impedes or hinders the administration of estates;

(b) promote compliance with the prescribed legislative policy and obligations imposed by the Act;

(c) protect creditors from inappropriate behaviour by a bankrupt that might result in diminished dividends from an estate; and

(d) protect the public from being misled into assuming uninformed risks in their dealings with undischarged bankrupts.

Given the context of criminal offending, it is imperative and a matter of considerable importance to clearly delineate the scope and operation of these bankruptcy offences, as well as any possible defences that might avail a bankrupt accused of any such offences. The instant case concerns one such offence and raises important issues concerning the operation and applicability of the defence of innocent intention in the context of the Act.

2 The respondent, an undischarged bankrupt, faced a total of seven charges: a single charge of directly participating in the management of a company while remaining an undischarged bankrupt, without leave of the High Court or the written permission of the Official Assignee pursuant to s 26(1) of the Business Registration Act (Cap 32, 2004 Rev Ed); and six further charges for obtaining credit without disclosing that he was a bankrupt as mandated by s 141(1)(a) of the Act. The respondent claimed trial to all seven charges. He was convicted on the single charge under the Business Registration Act and sentenced to a term of imprisonment of six weeks. As for the remaining six charges, he was acquitted under s 141(1)(a) of the Act by the District Court. I have allowed the Prosecution’s appeal against such an acquittal and now set out my grounds of decision.

The facts

3 On 24 January 2003, the respondent was adjudicated a bankrupt. He was officially notified of his duties and responsibilities as an undischarged bankrupt at the Insolvency and Public Trustee’s Office (“IPTO”) on 1 April 2003. To date, the respondent remains a bankrupt.

4 Prior to being adjudged a bankrupt, the respondent was in the renovation business from around 1990. He was conducting his business under the name of IDNC Interior Design and Contracts (“IDNC”). This business failed in 2001.

5 On 12 April 2003 (after the respondent became a bankrupt), the respondent’s mother, Goh Sia Lue (“Mdm Goh”), who is more than 70 years old, registered JL International Interior Design and Contracts (“JL”) naming herself as its sole proprietor. The place of business was stated to be the address of a condominium apartment belonging to the respondent’s sister. On 17 November 2005, JL’s name was altered to ‘JL-IDNC’.

6 Mdm Goh was the sole authorised signatory of cheques for JL’s bank account. However, the respondent alone managed JL’s bank account: he would prepare all cheques and documents for Mdm Goh to sign. JL’s bank statements were also retained by him.

7 The Central Provident Fund Board confirmed that JL was not registered as the respondent’s employer.

8 The six charges arose from renovation works carried out by the respondent at three flats. The owners of the three flats were pre-bankruptcy clients – the respondent had previously done renovation works for them when he was operating under IDNC. They had subsequently contacted him again to carry out further renovation works. This was after he had been declared a bankrupt.

Facts relating to the first two charges under section 141(1)(a) of the Act – District Arrest Cases Nos 19274 and 19275 of 2006

9 In February 2004, Ng Hwee Hoon (“Mdm Ng”) and her husband, Wong Chee Hon (“Wong”), engaged the respondent to renovate their newly-purchased flat at Geylang Bahru. They had previously engaged the respondent to renovate their old flat sometime in 1998 when the respondent was operating under the firm IDNC. The renovation works were itemised in a quotation dated 20 February 2004 prepared by the respondent. Agreed payment terms included, inter alia, a 20% down payment upon confirmation of invoice. At the request of the respondent, Mdm Ng issued a cheque of $6,500 in the respondent’s name, being the 20% down payment of the total renovation price. This cheque was deposited by the respondent into his personal bank account.

10 When queried about the change of business names and the residential business address stated in the quotation, the respondent told Mdm Ng that he had terminated IDNC’s business as his partner had withdrawn from it and that JL was his new company’s name. He also explained that the address was his sister’s residential address.

11 On 9 March 2004, upon receiving a request from the respondent, Mdm Ng drew a cheque of $9,500 in the respondent’s name to fund his purchase of tiles and timber for the renovation works. On the same day, the respondent collected the cheque from Mdm Ng and encashed it. Renovation works subsequently started in early May 2004.

12 In August 2004, Wong found out that the respondent was a bankrupt. He was shocked to learn of this. He promptly told his wife about it and the respondent’s status as a bankrupt was verified when Mdm Ng carried out an online search. Further, she discovered that JL did not belong to him. Mdm Ng testified that she and her husband would not have engaged the respondent to carry out the renovation works had they known he was an undischarged bankrupt. She stated that she would have been worried that the respondent would run away with her money.

13 On 4 October 2004, Mdm Ng complained to IPTO about the respondent’s conduct. In July 2005, IPTO referred the case to the Commercial Affairs Department (“CAD”), and despite her initial reluctance to do so, Mdm Ng was persuaded to lodge a report at CAD to initiate investigations.

Facts relating to the third and fourth charges under section 141(1)(a) of the Act – District Arrest Cases Nos 19276 and 19277 of 2006

14 In early 2005, Selina Lee Miau Kwee (“Selina”) engaged the respondent to effect partial renovation works at her parents’ house. She and her husband, David Graeme Swadling (“David”), had earlier engaged the respondent to renovate their flat, when he was conducting business through IDNC. However, by 2005, the respondent was operating under JL’s name. When asked by Selina about the difference in his firm’s name, the respondent told Selina that his partner had decided to dissolve their partnership and he had subsequently set up JL on his own. He added that “JL” were the initials of his name, Jason Low.

15 In March 2005, Selina and David again engaged the respondent to effect further renovations to their flat. On 29 March 2005, Selina signed a confirmation document, dated 26 March 2005, agreeing to the renovation works stated therein. As in the case of Wong and Mdm Ng, the document incorporated payment terms, requiring inter alia a 20% down payment upon confirmation of the engagement. Pursuant to this term, Selina handed the respondent a cheque of $14,400 payable to JL, pre-signed by David and dated 30 April 2005. As the cheque was supposed to be dated the same day as the agreement, the respondent approached David to correct the error. Instead of just amending the wrongly dated cheque, David issued another cheque for an amount of $21,600, which was in effect 30% of the total renovation costs. This was the amount required for the second payment under the payment terms – a further 30% payment upon commencement of work. It was then agreed between David and the respondent that the two cheques, that of $21,600 and the post-dated one of $14,400, would be treated as the first and second payments under the agreement. These cheques were deposited into JL’s bank account on 30 March 2005 and 3 May 2005 respectively.

16 In early May 2005, the renovation work at Selina’s flat commenced. These works were completed by the end of July 2005. However, there were a number of defects that were only satisfactorily rectified in November 2005.

17 The respondent did not inform Selina and David of his bankrupt status.

Facts relating to the fifth and sixth charges under section 141(1)(a) of the Act – District Arrest Cases Nos 19278 and 19279 of 2006

18 In September or October 2005, Wong Kooi Kong (“WKK”) and his wife, Kwang Ai Kim (“Kwang”), contacted the respondent for a quotation in respect of renovation works for their newly-purchased flat. They had engaged the respondent to renovate their previous flat in 1997 or 1998 and had been satisfied with the respondent’s work.

19 On 12 November 2005, Kwang signed a confirmation document dated 11 November 2005 on the renovation works to be done by the respondent for a total price of $29,000. In accordance with the respondent’s usual payment terms, there was a requirement for a 20% down payment upon confirmation of the engagement. A cheque was made out by Kwang for the sum of $5,800 as the down payment. This cheque was banked into JL’s bank account.

20 On 24 November 2005, upon the respondent’s request, Kwang issued a cash cheque in the sum of $7,860 to facilitate the purchase of materials. This cheque was encashed by the respondent on the same day.

21 Renovation works were commenced at the flat on 11 or 12 December 2005. The renovation works were completed by the end of January 2006. All minor rectification works were completed in February 2006.

22 It should be noted that WKK and his wife were aware that the respondent had been made a bankrupt in 2003. WKK was then working with Prudential Assurance Company Singapore (Pte) Limited (“Prudential Assurance”) and acted as his agent in arranging for the respondent’s...