Public Prosecutor v Low Tiong Choon

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 24 April 1998
• Neutral Citation: [1998] SGHC 135
• Docket Number: Magistrate's Appeal No 303 of 1997,Magistrate's Appeal No 215 of 1997
• Date: 24 April 1998
• Year: 1998
• Published date: 19 September 2003
• Plaintiff Counsel: Lee Sing Lit, Wendell Wong and Daren Tang (Deputy Public Prosecutors)
• Citation: [1998] SGHC 135
• Defendant Counsel: Wong Siew Hong (Teh Yip Wong & Tan), Chua Eng Hui (Billy Ng Chua & Partners) and Raymond Ng (Tan Lay Keng & Co)
• Court: High Court (Singapore)
• Subject Matter: Whether necessary to prove guilty knowledge in absence of an objectively corrupt element,Whether breach of Police Code per se sufficient to prove corruption,Criminal Law,Statutory offences,Corruptly receiving gratification,Two parts to establishing objective corrupt element,Assessing surrounding circumstances to infer intention,Objective corrupt element and guilty knowledge,Whether intention of giver or receiver taints transaction with objectively corrupt element,Two limbs to be satisfied beyond reasonable doubt,Prevention of Corruption Act,Whether act committed corruptly,s 5 Prevention of Corruption Act (Cap 241, 1993 Ed),Whether corrupt for police officer to introduce clients to legal counsel in return for reward in circumstances of case

Judgment:

1.YONG PUNG HOW CJ

The charge

The respondent, one Low Tiong Choon, was charged in the court below for the following offence:

You,

Low Tiong Choon

M/46

NRIC

are charged that you, on a day in April 1995, at 151 Chin Swee Road #02-15/16, Singapore did corruptly receive for yourself a gratification of a sum of $500 as a reward from one Yap Chee Leong for introducing one Gay Khiam Seen to engage the said Yap Chee Leong as counsel for the said Gay Khiam Seen in a traffic case, and you have thereby committed an offence punishable under s 5(a)(i) of the Prevention of Corruption Act (Cap 241).

2.As far as relevant, s 5 of the Prevention of Corruption Act (Cap 241, 1993 Ed) (PCA) states:

5 Any person who shall by himself or by or in conjunction with any other person -

(a) corruptly solicit or receive, or agree to receive for himself, or for any other person;

any gratification as an inducement to or reward for, or otherwise on account of -

(i) any person doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed;

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both.

3.Initially, Low was acquitted on the ground that he had no case to answer. The prosecution subsequently appealed in MA No 215 of 1997 (reported in [1998] 1 SLR 300) before this court. I held there that the presumption of corruption in s 8 of the PCA was not triggered. However, on the evidence, I allowed that appeal and the case was remitted to the court below for Low to enter his defence.

4.Before the defence was called, the trial judge amended the charge from `in April 1995` to `after 7 April 1995 and before September 1995`. But, Low maintained his `not guilty` plea. He was eventually acquitted at the end of the trial, resulting in the prosecution bringing the present appeal.

5.At the end of the hearing of this appeal, I upheld the acquittal and dismissed the prosecution`s appeal. I now give my reasons.

6. The prosecution`s case

Low was a staff sergeant in the Singapore Police Force until he retired in September 1995. At the material time, he was in charge of deployment and security operations at the subordinate courts.

7.It transpired that one Gay Khiam Seen (Gay) was arrested for drunk driving on 30 September 1994. He was charged for the offence on 31 October 1994 and was initially represented by one K Nair. However, his case was adjourned on several occasions.

8.Subsequently in February 1995, one Andrew Tang (Tang) introduced Gay to Low. Tang was a business associate of Gay`s father. He was also the nephew of one Roy Chua, a retired police officer, whom Low had known for many years.

9.When Gay related his traffic offence to Low, the latter said that he would go to jail since he was a repeat offender. Low then told Gay that he could assist him by introducing one Yap Chee Leong (Yap) whom Low claimed was experienced in handling traffic cases.

10.Low immediately telephoned Yap and said that he had a client to introduce to him. The same evening, Low brought Gay to Yap`s office at Chin Swee Road. After the introduction, Low left the office.

11.Yap subsequently represented Gay in court. On 7 April 1995, Gay pleaded guilty to his offence and was sentenced to a fine of $10,000 and imprisonment of one day. He was also disqualified from driving for three years.

12.The evidence which incriminated Low came principally from the statement of Yap, who had since passed away while serving sentence in prison. In so far as relevant, Yap stated that Low had introduced clients to him on five or six occasions. The last time was in 1995 and the client was Gay. Yap also stated that, on another occasion when he met Low in court, Low asked him how much he had charged Gay. Yap replied that he charged $5,000 although that was not the actual sum billed. Yap added that he took the hint that Low was reminding him of his introduction fee, and that Low later went to see him and was paid $500 in cash. Yap further stated that, after Low had introduced one or two clients to him, they struck up an arrangement whereby Low would be paid 10% for every client introduced. Finally, Yap estimated that he paid introduction fees to Low on three or four occasions.

13.Therefore, the prosecution`s contention was that Low had corruptly received gratification as framed in the charge.

14. The defence

Low testified that he came to know Yap during the course of his work at the subordinate courts when Yap was still a district judge. Yap had apparently told him that he was leaving for private practice and, on one occasion, he asked Low to introduce his friends should they want to engage a lawyer.

15.Low claimed that he introduced clients to Yap on three occasions prior to Gay`s introduction, but he was not paid any commission. As regards Gay`s introduction, Low confirmed that Tang had brought Gay at about 5pm to see him, and they met at the lock-up area of the subordinate court. The visit was unannounced. Low said he was told that Gay needed a lawyer and was asked whether he knew any good ones. Low proceeded to recommend Yap who was an ex-district judge and whose office was nearby. He said that the recommendation was in good faith.

16.As Low was off-duty at that time, he decided to accompany Tang and Gay to Yap`s office since he also had to collect his car from the multi-storey car park at Chin Swee Road. Low said he was at Yap`s office for about five minutes because he had to rush off to pick up his child at 6pm.

17.However, he denied asking Yap how much he charged Gay. Low said he had no contact with Gay again until they met at CPIB, nor ever receiving $500 as introduction fee from Yap. Low also said he did not know Gay pleaded guilty or how much Yap had charged Gay, and this was supported by Gay`s evidence.

18. The decision below

The trial judge found Yap`s statement to be reliable insofar as Low had received $500 from Yap for Gay`s introduction. However, on the evidence, she was not prepared to find that there were three or four other payments.

19.The trial judge also rejected the prosecution`s contention that Low`s motive in denying receipt of the $500 necessarily meant that he had a corrupt purpose in receiving the same. She reasoned that, on the evidence, it was equally plausible that Low had denied receipt to avoid disciplinary action which would have dire consequences on his pension, and not because he viewed it to be received corruptly.

20.The trial judge then went on to conclude as follows:

40 The gratification of $500 is categorised as a `reward` in the charge. As opposed to an `inducement`, a `reward` is for a retrospective act or favour done. The act for which the reward was given is stated in the charge as for the introduction of Gay to Yap. As there is no evidence to justify a finding that the accused had an ulterior purpose in receiving $500, the issue reduced itself to whether the receipt was sufficient by itself to make the receiving corrupt. In the present case, to justify a finding of `corrupt` receipt as a reward, I am of the opinion that the payment must be linked to the accused having done something or omitted in pursuance of his duty as a police officer or he must have used his position to obtain the reward. In my judgment, only then could the accused be said to be guilty of corruption in office. Otherwise, he should have been dealt with under the strict disciplinary procedures which exist for police officers.

41 There can be no doubt that the act of introducing Gay was not within the compass of the accused`s duty. The introduction of a client to Yap could have been done with equal ease by any member of the public who knew Yap as by the accused if he had left the police force. Yap`s reward was therefore unconnected with the performance of duty and position. I therefore found that the prosecution had failed to establish the ingredient of `corrupt` receipt.

21.On the totality of the evidence, the trial judge found that Low had not committed a positive breach of duty as a police officer. Although Low`s receipt of $500 was improper and was probably a violation of the Police General Orders, that was not synonymous with a breach of duty and corrupt receipt. Neither was non-disclosure synonymous with the term `corruptly` when the act had no relation to his duty. Thus, the trial judge held that the prosecution had failed to prove the charge beyond a reasonable doubt.

22. Issues in the appeal

The central issue in this appeal was whether, on the evidence, Low`s receipt of the $500 as an introduction fee was sufficient to render the transaction corrupt according to the ordinary and objective standard.

23.Only if the above question was answered in the affirmative would it be necessary to further inquire whether Low possessed the relevant guilty knowledge at the material time.

The appeal

The law

(i) The test for corruption

24.Once it is proved that there is a physical act of giving or receipt of a gratification under s 5 of the PCA, there is always the vital and sometimes vexed question of whether the act was committed `corruptly`.

25.In Chan Wing Seng v PP [1997] 2 SLR 426 at p 434, this court had clarified the correct approach to establishing what is meant by `corruptly` when it stated that there are two limbs to be satisfied beyond a reasonable doubt:

25 [T]here must be first a corrupt element in the transaction according to the ordinary and objective standard, followed by the accused`s guilty knowledge that what he was doing was, by that standard, corrupt. Both limbs must be fulfilled beyond a reasonable doubt. And, the question of `corrupt` would be determined on the facts of the individual case.

26.Based on the test above, it becomes apparent that both limbs must be taken in turn. Obviously, if it cannot even be proved that the transaction contained an objectively corrupt element, it is...